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Filing A Patent

The process of filing a patent application is lengthy and complicated, but it's an essential step in protecting your intellectual property rights to your invention and the profits you might earn from it. Here is a brief overview of how the patent application process works.

1. Make sure your invention is patentable.

Not every idea can be protected with a patent. Patentable inventions must be novel, useful and nonobvious (see Protecting Your Idea: Should You Patent It?).

2. Decide whether you need professional help.

If you’re new to the process of applying for a patent, the United States Patent and Trademark Office (USPTO) recommends hiring a patent attorney (see Hiring A Patent Attorney) or patent agent.

If you want to try doing it yourself, there are guides available online, such as those from legal publisher Nolo or The University of Texas at Austin’s engineering library. Somewhere between DIY and hiring an attorney directly are patent-filing packages like those offered by Legal Zoom.

3. Determine which type(s) of patent(s) you need.

You will want a design patent if your invention is the visual characteristics —that is, the surface ornamentation or physical shape — of a manufactured object. A design patent only protects how an item looks, not how it functions. A utility patent protects an object’s unique function and is used for a process, machine, manufactured item, composition of matter or an improvement on any existing one of these. Apply for a plant patent if you’ve invented or discovered and asexually reproduced a novel and unique plant variety. In some cases, you will need to file a patent in more than one category to fully protect your invention.

4. Thoroughly document your invention’s every last detail.

This step protects the key characteristics of your invention from being copied by competitors. It also makes sure your patent will meet the “enablement” requirement, which stipulates that your invention must be something you can describe with enough clarity and precision for someone with ordinary skill in the invention’s field to be able to make and use it. For some inventions, you’ll want to have professional technical drawings prepared to submit with your application.

5. Make sure someone else hasn’t already patented your invention.

You’ll need to perform a search for “prior art,” which is any publicly available material indicating that someone has already come up with the same invention you want to patent, whether that invention was ever actually created or not. You should search the existing U.S. patent database, foreign patents and printed publications such as published articles.

While you don’t have to search for prior art before applying for a patent, the USPTO recommends doing so. You don’t want to spend the time and money to submit an application that will be swiftly rejected because your invention doesn’t meet the basic criterion of being unique. A good place to start your search is the USPTO’s online patent full-text database. If the invention has already been disclosed publicly, you can’t patent it.

6. File an application with the USPTO.

Check with your patent attorney or agent about whether you should first file a provisional patent application. This will cost less, let you use the words "patent pending" to protect your invention and give you more time to perfect your concept before filing the full application. It will also put an earlier "first to file" date stamp on your invention.

If you decide to go ahead with the full application, you can file online, by mail or in person in Alexandria, Va. You’ll have to pay a nonrefundable patent-filing fee, which is higher for utility patents if you don’t file electronically. You’ll also pay patent search and examination fees. If your patent is granted, you’ll pay an issue fee. If you’re granted a utility patent, you’ll have to pay maintenance fees at 3.5, 7.5 and 11.5 years after your patent is granted. Other patent fees may apply as well.

The application should also include formal, specific claims to your invention and an inventor’s oath stating that you are the original inventor and are authorized to file the patent application for that invention. The exact information and paperwork you must include in your application depends on whether you’re applying for a plant, design or utility patent. Follow the USPTO’s specific instructions for the type of patent you’re applying for.

7. Wait. And wait.

Once you’ve filed your application, it typically takes one to three years to be granted your patent, but it can take up to five years or longer. In addition, you might not receive a patent the first time you apply, but you may be able to modify your application to gain approval.

The Bottom Line

Patents give you a way to protect – and profit from – your intellectual property. For the right type of invention, they are worth the considerable effort it takes to obtain them. See Understanding Intellectual Property and Patents Are Assets, So Learn How To Value Them.

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