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How to get a patent

United States Patent and Trademark Office (USPTO) is designed to allow individuals to get a patent themselves without the help of a lawyer. You can write the patent yourself, submit it and pay the filing fees.

Is this method free? No. You will always have to pay the filing fees to get your patent examined and then pay the issue fee once it is allowed.

Cost of Filing It Yourself

The fees range between $430 and $860 depending on if you are a micro entity or a small entity. Although it is not free to file yourself, you will still be getting a cheaper patent.

Still To Expensive? Do A Provisional Patent Application Yourself?

If $430 to $860 is still too expensive, you can file what is called a provisional patent application. A provisional patent is a placeholder patent application that allows you to claim patent pending status for up to one year and then decide whether to invest the larger amount for a full patent application (non-provisional patent application) that will be examined and can become an issued patent application.

Cost of Filing It Yourself

The cost to file a provisional patent application yourself is between $70 to $140.

The downside to the provisional patent application is that at the end of the one year time period you will lose all patent rights to the invention if you do not file the non-provisional patent application. One strategy startups with a limited budget use is to file the provisional patent themselves for the $70-$140, test the product/invention out in the market during that year period to see if it is valuable, and if it is, have a patent attorney prepare the non-provisional patent application.

Fiverr & Other Low Cost Options

The short answer: You are better to do it yourself.

If you can’t do it yourself but can not afford and attorney, you can use other low cost services such as Fiverr where others will prepare the application for you (and sometimes file it for you even though that is illegal). While this is an option, doing it yourself it typically the better option. The individuals offering their services on these types of platforms typically only take a few minutes to prepare the application, do a worse job then you would have yourself, and give you the false sense of security that it was done right.

If Budgets Allow – The Better Option Is to Use an Attorney

If the budget allows, it is recommended to use an experienced patent attorney to prepare and file your provisional or non-provisional patent application. They can help you avoid issues down the road and draft a patent application that is more valuable.

The Cost of An Attorney

The typical cost to hire an attorney to prepare and file a provisional patent application is $1750-$3000 and a non-provisional patent application is $5750-$10,000. The majority of what you are paying for is the attorney’s time and experience in preparing a patent application that will fully cover your invention and reduce the likelihood of a rejection(s) during examination.

Whichever option your choose, good luck along your inventive journey!

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How to get a patent

Patent Application

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Copyright Application

I was looking to get my idea patented .

I would like to speak with someone

If I have already a prov patent , how do I lodge for the us non prov patent without the costs of lawyers. I am in Australia and Australian Citizen

Why does the article state that I can get a provisional patent for as low as $70 but your fee schedule is thousands of dollars.

How do you know if what you want to patent isn’t all ready patented? Then what is the next step?

You can protect your invention with a patent. A patent can be used to prohibit others from copying, selling or importing your invention.

What is a patent?

A patent is the exclusive intellectual property right to an invention of a technical product or process.

Protection of an invention

Patent rights protect inventions. If you have a patent, others are in principle not permitted to make, use, resell, rent out, supply, import or stock your invention, or offer it to someone else.

The Netherlands Patent Office receives 2,500 to 3,000 applications a year. Examples of patented inventions include the multifunctional pushchair that can be adjusted to diverse angles, the storm-proof umbrella Senz, the Senseo coffeemaker, the clap skate, and Dutch crispbakes (beschuit) with indentations.

Patent applications: the three criteria

Patent applications must satisfy the following three criteria:

Novelty

Inventive step

Industrial applicability

These rules are laid down in the Patents Act 1995.

Patents Database

If the Netherlands Patent Office grants the patent, the technology will be made public in the patent databases and registers. Companies can consult these to see if the technology they wish to develop has already been patented. They can also see which of their competitors are already doing research and development work on a particular technology.

Patent outside the Netherlands

A patent is a national right. You may also decide to apply for a European patent or for one that applies worldwide.

Applying for patent protection in the EU with a single application

From 2017 onwards, a single patent will apply to the Netherlands and throughout the EU. After this ‘unitary patent’ enters into force, separate patents will only be required for Spain and Croatia.

Getting a patent revoked

Someone who considers that your invention does not meet the criteria for a patent can try to have your patent revoked. These proceedings are heard by the district court in The Hague. This court must decide whether your patent does in fact fulfil the criteria, and whether it should be revoked or upheld.

Patent licence for the use of an invention

You can give others permission to make, sell or administer your patented product or process. Patent holders can grant such permission by issuing a patent licence.

This application process is for applying for a patent in Canada.

Before you apply for a patent application, you need to:

Learn about what can be patented

To be patentable, your invention must be new, useful and innovative:

  • New—your invention is the first of its kind in the world.
  • Useful—your invention works or has a useful function.
  • Innovative—your invention is a new development or an improvement of an existing technology that would not have been obvious to someone working in your area of specialty.

To be granted a patent, your invention must be:

  • a product (example: a door lock)
  • a composition (example: a chemical composition used in lubricants for door locks)
  • a machine (example: a machine for making door locks)
  • a process (example: a method for making door locks)
  • an improvement on any of these

Do your research

Search patent databases

Search patent databases to find out if your invention (or a similar one) has been patented already.

Search for existing and pending patents using the following:

Search other databases

For some fields, non-patent databases may be even more important. Search other relevant databases with information about the field of the invention.

  • Biotechnology patent applications:MEDLINE
  • Electrical applications:IEEE

Determine if you need to hire a patent agent

You must hire a patent agent if:

  • the application is filed by someone other than the inventor
  • there is more than 1 inventor and the application is not filed jointly by all of the inventors
  • a transfer of the application had been recorded with the office

Why you should hire an agent even if you aren’t required to

Preparing and filing a patent application is not easy and can be time consuming. Think about hiring a licensed patent agent to help you. Patent agents understand patent and intellectual property laws and the application process.

Make sure your patent agent is licensed.

If you use an agent

You can help your agent get the strongest possible patent while avoiding unnecessary costs by preparing a statement that includes the following information about your invention:

  • Field of invention
  • Broad description
  • Objectives: Main practical advantages over existing practices or products
  • Preferred practice: Most appropriate use, with details of at least 1 practical application
  • New and distinct features: Include these whether they are patented or not
  • Scope: Materials, compositions, conditions, etc. used to obtain good results
  • Limitations: Whether the invention’s range can obtain good results, or if there are exceptions
  • Laboratory or commercial test results: These should show your patent’s preferred practice, and the conditions under which poor or dangerous results could be expected
  • Lists of existing relevant patents or technical articles: Include the name of the inventor, number of the patent, country and date of issue, or name of the periodical and its date, with a list of the similarities and differences of practices or products that are relevant to your invention
  • Disclosure: People you have already told about your invention
  • Personal information: Your name, address and citizenship
  • Other jurisdictions: Countries in which you would like to file for a patent

Decide if you’ll request examination at filing

Examination does not begin automatically. You must request it within 4 years from the filing date (5 years, if your filing date was before October 30, 2019 ). At the earliest, you can request the examination of a patent application when you file your application. This places your application in the queue for examination.

Know that your application will be public

In general, your application will be available in the publicly accessible Canadian Patents Database 18 months after your filing date (or earliest priority date). Otherwise, you can request that the application be open to public inspection earlier than the 18-month period of confidentiality.

Patent applications subject to section 20 of the Patent Act (items of national security) are not published.

Filing for a patent can protect your creation and business. Here's what you need to know about the patent filing process.

By: Sean Peek, Contributor

You’ve done your research, tested your designs and created a working prototype of your invention. Now you’re ready to present it to the public and turn it into a successful business.

Before you begin the process of launching your new product, you might want to consider filing for a patent first. As a piece of intellectual property, you’ll want to protect your unique creation from any potential copycats.

Below, we’ll explore the different patents available, as well as the steps for completing the filing process with the federal government.

What is a patent?

A patent is issued by the U.S. Patent and Trademark Office (USPTO) to grant a “property right” to the creator of an invention. This right excludes others from making, using, offering for sale or importing that person’s invention or design within the United States.

The majority of entrepreneurs will file one of two types of patents:

  • Utility patents protect how an invention works, including its functionality and structure.
  • Design patents apply to the look of an item and protect the “ornamental design.”

A new patent typically gives the inventor a 20-year window from the application date, where no one else can profit from manufacturing and distributing their invention or design.

Who can file for a patent?

With the exception of officers and employees of the USPTO, anyone who invents or discovers something that qualifies for a patent may file for one.

To obtain a patent, one’s invention or discovery must be “new and useful.” U.S. patent law states that an invention can’t be patented if it is already available to the public before the application is filed, or if another patent or patent application was filed describing the same claimed invention.

Whether you’re filing a design or utility patent, the USPTO operates on the “first to file” principle. This means that whoever files a patent for a particular invention or design first will have the patent’s protection rights.

To obtain a patent, one’s invention or discovery must be “new and useful.”

Patent filing process

The patent filing process can be a lengthy and expensive one, so if you’re hoping to obtain a patent, you’ll want to start as soon as possible. It may take 13 to 18 months to even receive your first notification from the USPTO, and the entire process — from filing to issuance — can take as long as 30 months.

According to the USPTO, here are the steps you should take before you file a patent application for your invention:

  • Research if your invention has already been patented.
  • Determine which patent is applicable to your invention.
  • Decide whether or not to file domestically and globally.
  • Decide whether to file the patent yourself or enlist an attorney to file on your behalf.

Once you’ve taken these steps, you can prepare to file your online application with the USPTO. You’ll need to first apply for a customer number and digital certificate, as well as pay any applicable fees.

After you file the electronic application, the USPTO will then examine it and decide whether to grant it. You may need to submit reconsideration requests and appeals if your patent application is initially denied.

If your patent is approved, you will need to pay the USPTO’s issue and publication fees, as well as maintenance fees at certain intervals after the patent is granted.

What other intellectual property protections exist?

To help you, the U.S. Small Business Administration offers a course that outlines the filing steps, timelines and costs for each. You can also check out CO—’s guide to protecting your intellectual property.

CO— aims to bring you inspiration from leading respected experts. However, before making any business decision, you should consult a professional who can advise you based on your individual situation.

To stay on top of all the news impacting your small business, go here for all of our latest small business news and updates.

CO—is committed to helping you start, run and grow your small business. Learn more about the benefits of small business membership in the U.S. Chamber of Commerce, here.

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Our FREE single sign-on app management system, COmpass, lets you access all your business apps in one place (with one password) and view key metrics from each of your apps on one screen. Spend less time remembering passwords and more time running your business with COmpass.

Just like filing a tax return, you can file a patent application without hiring a professional. There are numerous books on the subject and you can find guidelines and all the forms you need at the Canadian Intellectual Property Office (CIPO) website.

On the other hand, you may decide you’d need professional help. After all, as in hiring an accountant for your taxes, you can save time and benefit from the patent agent’s expertise and insight in the field. You’ll find a list of registered patent lawyers and agents on the CIPO website.

What can be patented?

Before investing time and money in patent protection, it’s important to investigate if your invention is patentable. A patentable product or service may be:

  • A product, e.g., a door lock
  • A composition, e.g., a chemical composition used in lubricants for door locks
  • An apparatus, e.g., a machine for making door locks
  • A process, e.g., a method for making door locks
  • An inventive improvement to any of these

It’s important to note that 90% of all patents today are actually improvement to existing inventions.

20 years of protection

Patents provide inventors with the sole and exclusive rights to use, make and sell the invention in the country where it has been issued. In Canada, the protection lasts up to 20 years starting from the date the patent application is filed.

However, not every new gizmo or chemical is worthy of patent status. Canada’s Patent Act requires three things: Ingenuity, utility and novelty. In simpler terms, in order to qualify for patent protection your invention must be new, useful and not obvious to someone skilled in the relevant field.

And take note: Just because you have never seen anything like your invention does not mean the patent is yours to claim. There are plenty of things that are patented but not on the market.

A patent search

To find out if your idea is unique, you need to do a patent search. Canadian inventions are usually investigated with the U.S. and Canadian patent offices. If, after the search, your creation appears to be original, it’s time to submit your formal application. The patent office will then do its own, more thorough, investigation.

The patent investigation process can take up to two years. If your patent is issued, you get proprietary rights to your design for 20 years. If your patent application is rejected—and you’re convinced it shouldn’t have been—you can appeal the decision.

Assistance is available

Depending of your project development status, you may want to contact The National Research Council (NRC). NRC is the Government of Canada’s premier organization for research and development. Specifically, you can contact the Concierge program, where industry experts provide free one-on-one assistance to businesses. You may also wish to contact CIPO’s Client Service Centre or a CIPO regional Business Development Officer.

A patent can be a powerful tool that acts as a high barrier to entry against competitors. Knowing how to benefit from patent protected innovations can result in significant competitive advantage and long term value for your business.

To get a U.S. patent, an application must be filed with the U.S. Patent and Trademark Office (USPTO), which determines whether a patent application meets the requirements for issuance.

Step 1: Is your invention patentable?

Before you file for a patent, you should determine if your invention can be patented:

  • An invention cannot be patented if (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent; or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States.
  • 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 thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from 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. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.
  • The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
  • The United States Patent and Trademark Office (USPTO) strongly recommends that all prospective applicants retain the services of a registered patent attorney or patent agent to prepare and prosecute their applications. The preparation of an application for patent and the conducting of the proceedings in the United States Patent and Trademark Office to obtain the patent is an undertaking requiring the knowledge of patent law and rules and USPTO practice and procedures, as well as knowledge of the scientific or technical matters involved in the particular invention.

Step 2: Conduct a search of prior art

A search of all previous public disclosures including, but not limited to, previously patented inventions in the U.S. should be conducted to determine if your invention has been publicly disclosed and thus is not patentable. While a search of the prior art before the filing of an application is not required, it is advisable to do so.

A registered attorney or agent is often a useful resource for performance of a patentability search. After an application is filed, the USPTO will conduct a search as part of the official examination process. Conducting a thorough patent search is difficult, particularly for the novice. Patent searching is a learned skill. The best advice for the novice is to contact the nearest Patent and Trademark Depository Library (PTDL) (link is external). You should also seek out search experts to help in setting up a search strategy.

Step 3: Filing for a U.S. Patent

To get a U.S. patent, you must file an application with the U.S. Patent and Trademark Office. A patent application is a complex legal document, best prepared by one trained to prepare such documents.

There are two types of patent applications:

  1. Non-provisional application, which includes: (1) A written document which comprises a specification (description and claims), and an oath or declaration; (2) A drawing in those cases in which a drawing is necessary; and (3) Filing, search, and examination fees. The applicant must determine that small entity status is appropriate before making an assertion of entitlement to small entity status and paying a small entity fee. Fees change each October. The fee schedule is posted on the USPTO Web site. A provisional application, which was designed to provide a lower cost first patent filing in the United States and to give U.S. applicants parity with foreign applicants. Claims and oath or declaration are NOT required for a provisional application.
  2. Provisional application provides the means to establish an early effective filing date in a patent application and permits the term "Patent Pending" to be applied in connection with the invention. Provisional applications may not be filed for design inventions. The filing date of a provisional application is the date on which a written description of the invention, and drawings if necessary, are received in the USPTO. To be complete, a provisional application must also include the filing fee and a cover sheet specifying that the application is a provisional application for patent. The applicant would then have up to 12 months to file a non-provisional application for patent as described above. The claimed subject matter in the later filed non-provisional application is entitled to the benefit of the filing date of the provisional application if it has support in the provisional application.

Publication of patent applications is required by the American Inventors Protection Act of 1999 for most plant and utility patent applications filed on or after November 29, 2000. On filing of a plant or utility application on or after November 29, 2000, an applicant may request that the application not be published, but only if the invention has not been and will not be the subject of an application filed in a foreign country that requires publication 18 months after filing (or earlier claimed priority date) or under the Patent Cooperation Treaty. Publication occurs after the expiration of an 18-month period following the earliest effective filing date or priority date claimed by an application. Following publication, the application for patent is no longer held in confidence by the Office and any member of the public may request access to the entire file history of the application.

View a flow chart visualization of the U.S. patent filing process.

More Information on Obtaining a Patent

For more information on filing for a patent in the United States contact the USPTO at (800) 786-9199 or (703) 308-4357. To file electronically, visit USPTO’s Electronic Filing System (EFS). If you have questions regarding foreign patents, please call 1 (866) 999-HALT.

To apply for a patent, you must file an application with IP Australia.

You can file a patent application online or download a paper application from IP Australia’s website. You can also engage a patent attorney to file the application for you.

Disclosure and publication

In the application you must fully disclose your product, process or invention.

After an innovation patent is granted, the patent is published in the ‘Australian Official Journal of Patents’ online through IP Australia’s website.

Approximately 18 months after the first application for a standard patent, the patent application is similarly published.

After publication, your product process or invention will no longer be secret, and it becomes public knowledge. This reflects the public policy that in return for the benefits of being granted a patent, you must allow the product, process or invention to become publicly known so that it can help others to advance technology. The other important purpose of publication is that you are entitled to stop anyone who infringes your standard patent from this date.

If your innovation patent has been examined, you are entitled to stop anyone who infringes your innovation patent from the later of the publication date, or the certification date (which occurs after examination)

Applying for an innovation patent

An application for an innovation patent is checked by IP Australia for compliance with certain formalities. Generally, the innovation patent will be issued 1 month later.

An innovation patent is not examined by IP Australia, unless you request examination.

Examination occurs when patent examiners consider whether there is compliance with all the requirements of the Patents Act 1990 (Cwlth), including whether your innovation meets the technical tests described earlier of patentable subject matter, newness (or novelty), whether there is an innovative step, and whether the innovation is useful (or has utility).

Normally, you would only request an examination if you sought to stop an infringer.

After a successful examination, the innovation is certified, and you become entitled to stop infringers.

Phase out of the innovation patent

The Australian Government has passed legislative amendments to phase out innovation patents, which means:

  • The last day you can file a new innovation patent will be 25 August 2021.
  • Existing innovation patents that were filed on or before 25 August 2021 will continue in force until their expiry. This will ensure current rights holders are not disadvantaged.

Applying for a standard patent

To apply for a standard patent your first application can be any one of the following.

Type of application

Why you might consider this for your first application

Provisional application

This application need not meet all the requirements for a complete application.

From April 2013 a provisional application must disclose the invention in a manner that is clear and complete enough for the invention to be performed by a person skilled in the relevant field. Failure to do this will result in loss of priority date.

It enables you to file an application without a full specification or description of the claims (or patent scope) that you will seek.

This type of application must be followed by either a Patent Cooperation Treaty (PCT) application or a complete application within 12 months, otherwise it lapses.

This application is never published and so never becomes public knowledge.

This application confers a priority date, and still allows you a further period of 12 months to evaluate your innovation and to develop it further before you have to finalise your full specification or description of the claims (or patent scope) that you will seek.

There are 3 advantages in doing so:

  1. You get the earliest possible priority date, which is the date by reference to which the newness (or novelty) of your innovation is tested. This can be very important in areas of technology that are fast moving.
  2. Your application will have priority over later applications from other persons seeking a patent over the same innovation.
  3. You have the ability to make your innovation more robust with 12 months of further development, which helps you make the strongest claims (or patent scope) that you will seek.

A Patent Cooperation Treaty (PCT) application deems your application to be simultaneously lodged in all the countries that are members of the treaty.

Advantages of a PCT application are:

  1. You do not have to make a separate application in each member country of the treaty where you may seek patent protection, which represents a significant cost saving.
  2. It allows you a period of up to 21 or 31 months from your earliest priority date to decide in which specific countries you want to apply for a patent.
  3. It is possible for a PCT application to be preceded by a provisional application, which would confer on you all the advantages of both.

Procedure after a standard patent application is filed

After the application is filed, the application is examined. As with innovation patents, examination occurs when patent examiners consider whether there is compliance with all the requirements of the Patents Act 1990 (Cwlth), including whether your innovation meets the technical requirements of:

  • patentable subject matter
  • newness (or novelty)
  • inventiveness
  • usefulness (or utility).

After that examination process, in Australia, other parties have a period of 3 months to seek to oppose or challenge the grant of your patent. Occasionally a party may wish to oppose or challenge the patent examiner’s findings in relation to patentable subject matter, newness (or novelty), whether there is an inventive step, and whether the innovation is useful (has utility), or other matters.

After a successful examination, if there is no opposition or challenge, your patent is granted. If there has been opposition, after the patent examiner’s decision is affirmed, your patent is granted.

How to get a patent

Have you invented something so cool, useful and original that the rest of the world just shouldn’t be forced to live without it any longer? Unless you want to make others rich on the avails of your ingenuity, you’re probably going to want to patent that.

How to Patent an Invention

For the uninitiated: a patent is a type of monopoly the government grants inventors for a set period of time, giving the inventor the exclusive right to manufacture, sell, use or otherwise benefit from. Basically, it ensures that no one else can steal your unique design/idea.

Well, unless you’re a patent troll. In that case, you make a career of buying patents and threatening inventors and companies with lawsuits. That’s a whole article unto itself, so I’ll just let John Oliver explain patent trolls in the way only he can (with clips from Shark Tank):

Even if you work with a patent attorney, this is your baby, and you should get as familiar with the process as possible.

How to File a Patent in X Steps

1. Search the United States Patent and Trademark Office. Before you invest another dollar or minute of your time, use this search engine to make sure your idea hasn’t already been patented. Make sure your idea is something you can patent using this resource from the USPTO.

2. Find a patent attorney. The application process can be made much simpler with the assistance of an experienced attorney, who can also help you avoid mistakes that could prove costly later on. Stephen Key has a great resource here on what to look for in a patent attorney.

3. Determine what type of patent you need. Do you need a Utility, Design, or Plant patent? This will guide the process you’ll use to apply for the patent.

4. File a provisional patent application. This offers a layer of protection in case someone later claims they had the idea before you did. As Issie Lapowsky points out, U.S patent law is a first-to-file system, not first-to-invent. You have to move fast, or you’re screwed.

5. Become a Registered eFiler. You can file your patent application by mail or by fax, but the easiest way to do it online through the USPTO website. Get your eFiler registration out of the way and read up on their most recent filing resources to make sure you know what’s expected of your application.

6. Gather information for your formal application. You’re going to have to prepare a specification, which includes an abstract, background, summary, a detailed description and your conclusion, including the ramifications and scope. In addition, you’re going to have to define the legal scope of your patent and again, I’d advise you to use an experienced patent attorney unless you’re 100% confident you have the skills and experience to handle this on your own.

7. Complete and review your formal application. It takes one to three years, on average, for a patent application to process. You don’t want it rejected for unnecessary errors or simple mistakes, so make sure you get it as close to right as possible the first time.

8. Participate in the patent process. You’ll have one patent examiner assigned to your case. If you receive any correspondence or requests from them, respond as soon as you possibly can. Keep in mind that if you have an attorney, the USPTO will communicate directly with them, so you’ll need to get your updates there. You can help move things along faster by being proactive in communicating with the patent examiner; consider arranging an interview to address any of their concerns (you can do this by video conference).

If your application is rejected twice, you can file an appeal with the Patent Trial and Appeal Board.

Should I File a Patent?

I filed a few patent applications back in 2010 and they’re still pending, with a lot of back and forth between myself and the USPTO. We’ll probably never sue other companies, so for us, it’s more a defensive tool.

Think of it as insurance–you hope you won’t ever need it, but it might be a good thing to have.

How to get a patent

Getty

If you’ve invented something new, you’ll want to protect your work. But filing for a patent can take time and can get costly. Instead of filing for a patent outright, file for a provisional patent that gives you 12 months to determine the commercial viability of your invention. This will allow you to use the “patent pending” label while you pitch and market your item. Here’s what you need to know about filing a provisional patent.

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What is a Provisional Patent?

The provisional patent has been around since June of 1995. It is offered by the United States Patent and Trademark Office (USPTO) to give inventors a low-cost option for filing in the U.S. It also gives U.S. applicants parity with foreign applicants under the GATT Uruguay Round Agreements, which set the groundwork for tariffs and trade for 123 countries.

Provisional patents are legal documents filed with the USPTO to establish an early filing date of an invention. In order for its provisions to extend beyond the 12 months of the provisional patent, you must file for a nonprovisional patent. This 12-month period can’t be extended, so if you miss filing the nonprovisional patent in the designated timeframe, you’ll no longer have any patent protection for your invention.

Benefits and Disadvantages

The United States awards patent rights to the first person to file a patent application for a particular invention. The key advantage of the provisional patent is that it allows inventors to secure their position as “first to file” by submitting a simplified application. Unlike a nonprovisional patent, a provisional patent application doesn’t require a claim. The claim defines the invention you want to protect. Because a provisional patent doesn’t include a claim, it’s simpler to prepare and doesn’t alert competitors to the exact invention you’re protecting. This gives inventors time to test and refine an idea without worrying that someone else will be the first to file a patent application.

Not having to write a claim means that many provisional patent applications don’t need an attorney, so inventors can complete their own application. This saves on costs since you don’t have to pay legal fees, just the filing fee that ranges from $75 to $300 per application. Once you file the provisional patent application, you can describe your invention as “patent pending” for 12 months. These are all key benefits to going the route of the provisional patent.

The disadvantage is that no patent will be issued from a provisional patent. The application serves as a placeholder while you prepare and submit your nonprovisional patent application. This means you’re tacking on a cost that wouldn’t otherwise be there if you went right to the nonprovisional patent application. This can create a false sense of protection since there is no guarantee that a patent will get issued when you complete the remaining paperwork.

When To Consider Filing

Since the provisional patent has limited protection and will never get an official patent issued, you may wonder when and why to use it. The idea behind using a provisional patent is that you want to secure your position as the first one to file for your patent, and then quickly move into the production and distribution of your product. You want to have pitch sessions and maybe seek investment capital into your idea. You don’t want to sit and wait for a patent to get issued, which can take up to 22 months.

By filing the provisional patent, you protect your idea immediately while you complete the nonprovisional paperwork. This gives you the protection provided by “patent pending” noted on all materials related to your product.

How To Apply for a Provisional Patent

To start the application, you need to complete USPTO Form SB-16, which is the Provisional Application for Patent Cover Sheet. This sheet lists the names of the inventors, the title of the invention and notes the address for correspondence. It also has a disclosure to complete and requires a signature.

With the application, you will include:

  • Application Data Sheet
  • Drawings of the invention
  • Specification (description of the invention)

You can submit your application online or by mail. The standard filing fee is $300. Small entities pay $150 while micro entities pay only $75 for the provisional patent. A small entity has no more than 500 employees. Micro entities are small entities that aren’t named on more than four utility patents and have a gross income that doesn’t exceed three times the median household income for the preceding year.

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