Every day, inventors develop new and interesting methods and machines. These new inventions may be quite valuable because they improve upon existing systems that are commonly used. Whether you’re an employee or an independent inventor, it is important to protect your invention by filing a patent.
How Do I File a Patent?
Patents are filed with the United States Patent and Trademark Office (USPTO) to secure exclusive rights in an invention for a limited time. Because many new inventions build upon existing discoveries, the patent filing process is somewhat more complex than for other kinds of intellectual property. There are several key steps spanning all the way from the prototyping stage to the final preparation of the patent for filing with the USPTO.
Step 1: Keep a Written Record of Your Inventing Process
It may seem basic, but proper documentation throughout the development of your invention is crucial to filing a patent application. At every breakthrough or advancement, record the important relevant information. Ask yourself:
- When did the advancement occur?
- How does it differ from or improve upon existing methods?
- How do you replicate the results?
A thorough written record serves two functions. First, it provides proof of when you made a discovery. This is helpful if there is an issue related to the novelty of your invention. Second, the greater detail will help a patent attorney draft a more effective patent application.
Step 2: Determine What Kind of Patent You Need
The USPTO offers three types of patents: utility, design, and plant.
Utility patents are appropriate for the invention or discovery of new or useful processes, machines, articles of manufacture, or compositions of matter. According to the USPTO, most patent applications are of this type.
Design patents are appropriate for new or original designs for manufactured goods. Design patents are used to patent the design or surface pattern of a manufactured article.
Finally, plant patents are available for anyone who invents, discovers, and reproduces distinct varieties of a plant. Hiring a patent attorney to review your invention is the most effective way to decide which type of patent is best for you.
Step 3: Make Sure Your Invention Qualifies for Patent Protection
Not all inventions are eligible for patent protection. In United States patent law, only processes, machines, manufacturing methods, compositions of matter, or improvements to any of those can be patented.
Patentability further depends on the usefulness, novelty, and “non-obviousness” of the invention. Usefulness refers to the invention’s ability to perform the function it is designed to perform. For example, a machine designed to create widgets is not “useful” if it does not manufacture widgets.
Novelty refers to the newness of the invention. A patent cannot be obtained if the claimed invention was previously patented. This is where thorough records can be helpful. As part of your patent application, you will need to draft “claims” that define the scope of the patent protection. The more specific your notes, the easier it will be for a patent attorney to draft claims that demonstrate how your invention is new (or “novel”) even if a patent for a prior, similar invention already exists.
Finally, non-obviousness refers to the difference between your invention and a prior one. An improvement is non-obvious if it does something in a way that would not be obvious to a person with ordinary skill in the area of technology related to the invention.
Questions about your invention’s usefulness, novelty, and non-obviousness are all questions a patent attorney can answer. Since the patent application is relatively expensive, knowing whether your invention is patentable at all is important to prevent unnecessary expense.
Step 4: Assess the Commercial Potential of Your Invention
There is a reason that federal patent law treats pending applications as confidential. Many patents involve inventions or new processes that improve on the efficiency or reduce the cost of existing ones. As a result, your invention may have great commercial potential. Determining your invention’s commercial potential is a way to assess both whether filing a patent is worth the time and money and whether additional safeguards should be taken to protect your invention.
Step 5: Conduct a Thorough Patent Search
Perhaps the most important step in the process is conducting a thorough patent search. A patent search determines whether existing patents exist, called prior art, that defeat the novelty of your invention and thus render it ineligible for patent protection. A thorough patent search is crucial to determine both the patentability of your invention and the ultimate scope of your patent.
The exact process will differ depending on who performs the search, but there are some common steps. A patent search generally involves developing a list of terms that describe your invention. The attorney then uses those terms to find existing patent documents filed with the USPTO. The attorney will thoroughly review the documents to determine whether they are prior art for your invention. After the first round, the patent attorney broadens the search to include non-U.S. patent filings.
Conducting a patent search is a complex and difficult process. Because this step is so important, hiring an experienced patent search attorney is the best way to uncover any prior art that could affect the patentability of your invention.
Step 6: Prepare and File the Application
After conducting a patent search and completing the application, you are ready to submit. At this point, you will need to pay any applicable filing fees. After you submit the application, a patent examiner reviews its contents to determine whether your invention is patentable. If there are no issues with the application, the USPTO will grant your patent.
How Much Does a Patent Search Cost?
A variety of factors contribute to the total cost of a patent search. However, you can expect to pay between $1,000 and $3,000 depending on the type of invention. As a general rule, the more complex the invention is, the more you can expect to pay. This is because more complicated inventions will require deeper research into existing patents and applications.
Although you can conduct a patent search yourself, hiring an attorney allows you to get the most out of a search. Unfamiliarity with what to look for and where to search may result in ineffective and time-consuming search efforts. A patent search attorney, however, will have experience conducting these searches and will have a better idea of what terms to use and what information they will need to assess the patentability of your invention.
What Does a Patent Attorney Do?
A patent attorney has three main roles. First, they will help you prepare and file your patent application. In addition to being a lawyer, a patent attorney is someone with a scientific or technical background. As a result, they are better able to understand not only your invention but the prior art. This expertise is crucial in drafting your patent application and conducting a thorough patent search. It also means that they are well-equipped to answer your questions about the nature of your invention, its commercial potential, and whether a patent is right for you.
Second, a patent attorney acts as your guide in selling or licensing your patent. Many inventors wish to benefit from their inventions by licensing or selling their patent rights to others. A patent attorney can help you draft and negotiate licensing or assignment agreements and provide advice on the value of your patent.
Finally, a patent attorney helps you enforce your patent rights. If someone else infringes on your patent rights by using or selling your invention without your permission, a patent attorney can help you fight the infringer in court. If someone challenges the validity of your patent, or if the USPTO subjects your patent to re-examination, a patent attorney represents you in front of the Patent Trial and Appeal board.
In all cases, a patent attorney is there to help you with all aspects of your patent. Their combination of expertise makes them uniquely qualified to deal with the kinds of complex and technical issues that arise both in the law and with your invention.
Consult a Patent Lawyer
At John C. Laurence Law, PLLC, we have the real-world expertise required to assist clients nationwide in obtaining and enforcing their patent rights. We specialize in listening to your needs and making sure you receive high-quality legal representation. Contact us today or give us a call at 917-612-1059 to schedule a free consultation.