How to Patent an Idea

How to Patent an Idea

Can you patent an idea?

You’ve got the next great invention? Think you’ve got a good idea? Great! Although the patent process can seem daunting, sometimes good ideas are even harder than getting the patent itself.

An idea cannot be patented, but if the idea is used in conjunction with a physical process or machine, it may be eligible for patent protection.

Of course, the easiest answer to this question is that you need a lawyer, in this case, a patent attorney or agent to prepare your patent application for filing.

The grant of a patent provides the inventor exclusive rights to secure it from being copied. But my guess is that you’re reading this article because you’re a doer. So, let’s go through some of the big picture topics.

Patents fall under the broad legal category of “intellectual property”“. Patents, like copyrights, involve compliance with certain statutory formalities and patent law is exclusively federal in nature.

This article will cover commonly asked questions around patents and patent protection. At this end of this article you should have a better sense for how to go about getting a patent.

Before getting into the actual process, let’s cover some of the basics.

How long does a patent last?

A design patent lasts 14 years from the date of issuance. A utility patent lasts 20 years from the date of filing but can be extended.

What is an invention?

When it comes to patents an invention means a discovery or creation of a new process or material or composition. Per the U.S. Patent and Trademark Office any individual who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” The word “useful” means that the subject matter has a purpose. If a machine will not operate to perform the intended purpose it’s not useful and won’t be granted a patent.

What does First to file mean?

A person who has is the inventor of a concept may own the right to patent. However, rather than following the first to discover or create type of model, the United States follows a first to file model, meaning, the first person to file a concept that has been reduced to practice will be given the prima facie right to the grant of a patent.

What are the benefits of a patent?

A patent gives exclusive intellectual property rights as granted by the Patent Office to an inventor for a specific invention or concept for a fixed period of time. Rights include the right to sell and license, make, and use the invention during the fixed period of the patent. Rights are legally enforceable and give the patent holder the right to use the invention commercially.

A granted patent prevents others from making, using, offering for sale, or selling your invention throughout the United States or importing your invention into the United States during the life of the patent. In exchange for this exclusionary right, you must publicly disclose your invention through the application process. After a patent expires, the invention enters the public domain and anyone can make, use, offer for sale, or sell the invention without permission from the patentee. 

A patent does not give its owner the right to make, use, offer for sale, or sell an invention. These rights come from independent business decisions and market conditions that exist whether or not a patent exists. A patent only gives its owner the right to exclude others from making, using, offering for sale, or selling the invention without his or her permission.

A patent protects the way something is made or how it works. A granted patent gives an inventor the right to exclude others from making, using, selling, and importing the invention for a limited time in exchange for disclosing the invention to the public.

What is a patentee?

A patentee is the person who has been granted the exclusive right to a patent.

What is patent pending?

This term is used when the patent application for an invention has been submitted but the patent has not yet been issued. The nice thing about this status is it gives a warning to the pubic that a patent may issue shortly and prevents patent infringement.

What is patentable subject matter?

The utility of an invention, an ornamental design of an invention, and asexually reproduced plant varieties are subject to patent protection. The US PTO states, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this title”.

Computer programs and algorithms are not patentable,  however, the use thereof to control hardware with the purpose to produce a useful, concrete, and tangible result can be patented.

Overview – What are the different types of patents?

There are four main types of patents that can be issued by the United States Patent and Trademark Office: 1) Utility patents, 2) Provisional patents, 3) design patents, and 4) Plant patents.

What is a Utility Patent?

Utility patents are the most common type of patent and cover inventions that are new and useful.  An invention is useful if it has a specific and practical utility. Examples of inventions that can be patented include machines, manufactured products, chemical compositions, and processes for doing something.

According to the US PTO a utility patent may be filed for any “new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof”.

How to Obtain a Utility Patent

To obtain a utility patent, the applicant must file a nonprovisional patent application with the USPTO. The USPTO refers to utility and plant patent applications as nonprovisional applications because they are complete applications that are not based on a previously filed application.

The USPTO has published extensive information about filing a nonprovisional utility patent application, including the requirements for drawings, claims, and the specification. See the USPTO website at www.uspto.gov for more information.

Utility patents protect inventions that are new and useful.

What is a Provisional patent?

Provisional patents are temporary and can be issued for inventions that are not yet complete. design patents protect the unique appearance of an object. plant patents cover new varieties of plants that have been artificially produced. Each type of patent has different requirements, but all serve to protect the intellectual property rights of inventors.

Why would I file a provisional patent application?

A provisional patent application (“PPA”) is used commonly when an invention is still in development but the inventor wants to delay filing the traditional, final version patent until the invention is complete.

Another reason is to extend the term that the US patent protection, which will provide up to an additional year of protection. This is because the term of the patent doesn’t include the PPA.

A PPA is abandoned automatically twelve months after filing. This means to obtain a patent for an invention described in the PPA the provisional application must be converted within one year of the PPA filing date. This will convert the PPA into an actual patent.

What is a “Design” patent?

Design patents protect the design of an object, which must be original and new. A design patent is a type of patent that covers the ornamental design of a useful object. This patent does not protect the functional features of the product. Design patents are issued for 14 years from the date of issuance.

The design can be two-dimensional (for example, a pattern on wallpaper), three-dimensional (the shape of a coffee mug), or both (a decorative element on the handle of a spoon). To get many inventions are combinations of these categories. For example, a new telecommunication system may combine processes and machines. Or, a new kind of concrete may combine new combinations of existing materials as well

How to Obtain a Design Patent

To obtain a design patent, the applicant must file a design patent application with the USPTO. The USPTO refers to design patent applications as nonprovisional applications because they are complete applications that are not based on a previously filed application.

The USPTO has published information about filing a design patent application, including the requirements for drawings and the written description of the design. See the USPTO website at www.uspto.gov for more information.

Design patents protect the ornamental design of an invention.

What is a “Plant” patent?

According to the US PTO, “Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant”. Plant patents are issued for 20 years from the date of filing the application (note, from the earliest filed application). 

How to Obtain a Plant patent

To obtain a plant patent, the applicant must file a plant patent application with the USPTO. The USPTO refers to plant patent applications as nonprovisional applications because they are complete applications that are not based on a previously filed application.

The USPTO has published information about filing a plant patent application, including the requirements for drawings and the written description of the plant. See the USPTO website at www.uspto.gov for more information.

Patent protection

Patent law protects inventions for a limited statutory period (20 years from date of application). 35 USC § 154(a)(2). 

Understand your invention

When getting a patent, you first need to know about it and perform a lot of research. What is new in an invention? Suppose I have a micro cabin filter that removes 99% of all carbon emissions from the exterior air before it enters the cabin of the car. Or, suppose I have a set of custom textile shears. The scissors come equipped with a customized handle with different ergonomic, finger-shaped loops, they also feature additional pivoting points which make the scissors feel even less resistance as it cuts very thin fabrics.

If you know what makes the invention unique, as part of your research, you should consider the scope. Can I use another tool to develop something? How do you replace a pivot with a spring in a swivel?

You need to make sure that your idea is patentable. Unfortunately, not every great idea is going to be able to get a patent. But, there are three primary requirements for even being able to get a patent: novelty, usefulness, and non-obviousness. If your idea meets these three requirements, then you’re on the right track.

Next, you’ll want to start thinking about how you’re going to draft your patent application. This is where things can start to get really technical. But, don’t worry, there are plenty of resources out there to help you through this process. The USPTO (United States Patent and Trademark Office) website has a ton of information and resources available, and there are also a number of private companies that will conduct the background service on your behalf for a fee. Identify and understand any utility for the invention.

If you ever seek advice or help from others as part of your research, consider a non disclosure agreement.

Verify the Idea is Eligible For a Patent

As you continue to research and work on developing your idea, it is important to make sure that it is eligible for a patent. To do this, you can search for similar ideas that have already been patented. This requires a patent search. This will help you to get a better understanding of what is required in order for your idea to be patented. Additionally, you can speak with a patent attorney to get professional guidance on the matter. Finally, once you have determined that your idea is eligible for a patent, you will need to file a patent application with the USPTO. Conduct a clearance search, which is also referred to as a patent search. Do not disclose your idea publicly. Keep your future intellectual property close to the vest.

Patentable Invention

For your invention to be patentable it must be new, non obvious and useful. According to the U.S. PTO, this means, “the subject matter sought to be patented must be sufficiently different form what has been used or described before that it may be said to be non obvious to a person having ordinary skill in the area of technology related to the invention…even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar think already known, a patent may still be refused if the differences would be obvious.”

Get a patent and turn your invention an intellectual property, before you do that you’ll need to do a patent search, which is detailed further below.

Patent search

It is recommended that an inventor higher a professional searcher or patent attorney/agent to perform a search.

A professional searcher may perform a novelty search. This will determine whether your invention is new enough as compared to prior art.

A professional searcher may perform a validity search. This is usually necessary when an examiner has overlooked a prior art references and issues a patent mistakenly. The reason this is so important is to avoid infringement and being sued.

Professional searchers may also consider non-patent literatures searches from publicly available writings and state of the art searches which consider the current state of technology in a particular field.

Patent eligibility must meet certain threshold requirements

Whether your ideas or invention is novel and non obviousness are two completely different things and the test for each is different. In order to be patented an invention must be both novel and non obvious.

“Non obviousness” does not require that the invention be completely new, but only that it not be “obvious” to someone skilled in the art.

The standard for “non obviousness” is whether the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious at the time of the invention to a person having ordinary skill in the art.

To make this determination, the examiner considers factors such as:

(1) The scope and content of the prior art (2) The level of ordinary skill in the art (3) The differences between the claimed invention and the prior art (4) The motivation to combine the prior art (5) Any teaching, suggestion, or motivation to combine the prior art that would have been apparent to one of ordinary skill in the art at the time of the invention.

These factors are evaluated in light of the prior art, the claims, and any evidence submitted by the applicant.

These factors will also consider the process machine or apparatus, composition of matter and article of manufacture that are new and useful and novel. To be patentable, the invention must not be obvious to someone skilled in the art at the time of the invention.

Certain ideas cannot be patented under patent law

Ideas, works of art, and natural phenomena are a few examples of things that cannot be patented. Other examples include:

-Laws of nature

-Physical phenomena

-Abstract ideas

-Literary, dramatic, musical, and artistic works

-Mere plans or schemes

-Calendar dates

-Mathematical formulas

To be eligible for a patent, an invention must be a process, machine, manufacture, composition of matter, or any new and useful improvement thereof.

A mathematical formula is not an invention and cannot be patented. However, if a formula is used in conjunction with a physical process or machine it may be eligible for patent protection. For example, the formula for Coca-Cola is not patentable, but the process for making Coca-Cola is.

To be eligible for a design patent, an invention must be a new, original, and ornamental design for an article of manufacture.

A design patent can protect the way an article looks and can give its owner the exclusive right to make, use, or sell that design for 14 years. Design patents are different from utility patents in that utility patents protect the function of an invention while design patents protect the form or appearance of an invention.

The Patent Application Process

So we’re at the stage of how to patent an idea. At this point you’ve conducted all your research and you are ready to consider patent filing. Ultimately, you’ll seek to file a patent, and you’ll be working with the patent office to file your patent applications. As mentioned above, one clear option is to have a patent attorney (or agent) prepare your patent application describing the invention. After the application is complete it is filed with the proper fee through the (USPTO). You can always file your patent application on your own through the USPTO website. Filing fees vary depending on the type of application and your business status.

If you work with an attorney, they will put you through the process of describing the invention, getting illustrations, and applying. Generally your choices at this stage are filing a regular application (formal patent) or start with a provisional (temporary) one. The big difference is typically in terms of cost(s) and the time it takes to prepare and file the application.

Keep detailed records. Of everything.

It’s important to focus on having detailed records for reasons I’m sure you’re aware of.   You need to keep a detailed record of every step of the way as you work on developing your idea. This includes records of all conversations, meetings, and brainstorming sessions that you have regarding the idea. Additionally, it is important to keep track of any research that you do related to the idea. These records will be incredibly helpful if you ever need to defend your idea in court. 

Additionally, it is important to keep track of the date when you first came up with the idea. This date is known as the “priority date.” The priority date is important because it establishes how far back your idea can be protected. In order to get a patent, your idea must be new and non-obvious. If someone else has already patented a similar idea, then you will not be able to get a patent for your idea. Therefore, it is important to establish your priority date as early as possible.

There are a few different ways that you can establish your priority date. The first way is by filing a provisional patent application with the USPTO. This application does not need to be complete or perfect, but As you work on developing your idea, it’s important to keep detailed records of everything. This includes records of all conversations, meetings, and brainstorming sessions that you have regarding the idea. Additionally, keep track of any research that you do related to the work you’ve conducted.

Make a Prototype of your idea

The next step is to create a prototype of your idea. In the real world, this will help you to further develop and refine your idea. Additionally, it will give you something concrete to show potential investors or manufacturers.

If you are not sure how to go about making a prototype, there are a number of resources available to help you. There are a number of books and online resources that can guide you through the process. Additionally, there are a number of companies that offer prototyping services. These companies can help you to create a professional-grade prototype of your idea.

Once you have created a prototype of your idea, it is important to test it out. This will help you to identify any potential problems with your idea. Additionally

Drawings

The US PTO requirements for drafting drawings are very specific. The patent application drawings must be in black ink on white paper that is at least 8.5 inches by 11 inches in size. The margins must be one half inch on all sides. The drawing sheet must contain as little extraneous matter as possible and must be titled with the name of the invention, the applicant’s name, docket number and application number (if available), and the page number of total number of sheets.

Each figure on a drawing sheet must be labeled with a number in the order in which they are presented in the specification. In other words, if you have three figures in your patent application, they should be numbered Fig. 1, Fig. 2 and Fig. 3.

If there are multiple views of a single figure, they should be labeled with lower case letters in alphabetical order. For example, Figure 2A, Figure 2B and so on.

The scale of the drawing should be large enough so that all details can be clearly seen when the drawing is reduced in size to two-thirds its original size. All lines must be sufficiently thick so that they will still be visible after the drawing is reduced.

Filing a regular application v. Provisional Patent Application:

If you want to patent an idea, you can either file a full-blown regular patent application (RPA) or a provisional patent application (PPA) with the patent office. A PPA is not an actual application for the patent itself. Filing a PPA simply allows you to claim “patent pending” status for the invention/idea and involves only a small fraction of the work and cost of a regular patent application. If you file your patent application, you’ll put the public on notice of your invention. An actual patent protects your idea from infringement and puts the law on your side.

All that is required to file a PPA is a fee ($65 for micro-entities, $130 for small entities, $260 for large companies). Please note that costs will occasionally vary, so it’s best to review and verify these fees are still accurate. 

A PPA process requires a detailed description of the invention, telling how to make and use it; and an informal (1) Provisional Patent Application. A provisional patent application may be filed to preserve the inventor’s right to obtain a utility patent for a period of one year from its filing date. A provisional application doesn’t need to have any patent claims and is not examined. 35 USC § 111(b). 

Prior Art Considerations

Overcoming common obstacles – Prior Art

Let’s say I’m filing a patent and/or applying for a patent through the patent office, and I don’t have an attorney to help me with the law. At this point for sake of argument we’ll assume I have a patent filing. Let’s say that I’ve submitted an idea for patent approval and the examiner (patent office) cites examples of prior art that could be combined to form my invention. Bear in mind, this is a frequent issue, that it may take years of working with the examiner’s before final approval. At this point, I might hire an attorney for legal advice. But, let’s say I want to try and proceed on my own.

But let’s say the prior art has been around for 20 years and no one has combined it in the particular form of my invention. Are there arguments to be made that it is not obvious? Especially considering the prior art cited has been around for 20 plus years and no one else has come up with this idea?

I may consider presenting evidence of “secondary considerations”

Some examples of secondary considerations are:

(1) The invention’s commercial success (2) Long felt but unresolved needs (3) The failure of others (4) Unexpected results (5) Skepticism by experts (6) Praise by others (7) Teaching away by others (8) Recognition of a problem (8) Copying of the invention by competitors

I might then file to amend the claims and argue the claims are patentable as amended. If I file evidence presented, this alone does not necessarily resolve the issue. At this point, I may also consider another search.

The importance of the Prior Art search

This is a good idea and important because it helps determine whether the invention is new and patentable. This will require significant research and a strong understanding of the description of the invention you are seeking to patent. This is an extremely important part of the patent process. It allows the careful drafter to make broad patent claims, while narrower than any prior art. A solid search will also prevent prosecution and later amendments to the patent application.

Don’t assume your invention is new and non-obvious. Instead, do your due diligence through a prior art search and determine that your idea is in fact patentable.

Guidelines for performing a prior art search

Before filing a patent, first, you should have a list of the steps or systems used to reach to final step of your invention. Second, you should break down any of the invention’s ideas/parts/concepts into elements (if possible) so that the professional searcher understands the invention and its utility. Third, generate your list of keywords. You may have to use a thesaurus to determine all synonyms. Consider specific and generic words. When making your list of synonyms try to find equivalent and analogous terms. You should consider term variations and different vocabularies for describing your invention. Consider multiple word variations and word combos. Understand queries with different field codes utilizing Boolean expressions. Perform initial searches using google and later perform a free search using the United States Patent and Trademark office website. Search keywords across different databases, for instance: claims, abstracts, and specifications. 

After reading this section, it should become clear to the inventor why it’s so important to have a clear understanding of their invention, its component parts, its utility/novelty and to have a solid set of keywords before starting their prior art search.

If you want to patent an idea, you’ll need to overcome some obstacles with searches, and often you’ll need to employee an expert to make sure this is done in the most effective and efficient way possible.

Prior Art Reference

This might include existing patents, utility models or other literature. When applying for a patent the applicant has a duty to submit any and all prior art references that they know of to the U.S. PTO. The examiner will act as referee to decide if the references submitted meet the criteria as prior art.

Conclusion

This article is informative but not exhaustive. The subject matter discussed in this article relates only to US Patents and Not international patent law. To conclude, if you have an idea that you think could qualify for a patent, it is best to consult with a patent attorney, law firm or agent to get their opinion on whether or not your idea is eligible for patent protection. This article is for informational purposes only and is not legal advice.

This concludes our discussion on How to Patent an Idea. Thank you for reading.