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How to file a patent

Learn what you can patent, the different types, and where to apply.

Learning how to file a patent can be challenging. The application requires a lot of detail and must be put together in a specific way. To simplify the process, learn what to do at each step.

1. Understand your invention

It’s a good idea to document as much of your invention process as possible. This will help in 2 ways:

  • Filling out the application, which will require very specific information about your invention.

  • Identifying differences between your invention and similar products already patented. Doing this may make the difference between getting the patent and having it denied.

Depending on what you’ve invented, it might even be helpful to have a working prototype. That way you’ll know it works as described. This can also help if you’re required to include a drawing with your application.

2. Check for existing patents or descriptions

The United States Patent and Trademark Office (USPTO) will only issue patents for new inventions. This means your idea must never have been patented or described in the literature before. It doesn’t matter if the product was never produced, only that a patent or previous description exists.

Before filing a patent application, you need to do a search:

  • Use the USPTO’s online patent search.

  • Search a USPTO Patent and Trademark Resource Centers, housed in libraries across the country. Some of these offer training in how to do patent searches.

  • Search publications within the industry most relevant to your invention. This helps ensure your idea hasn’t been described in the literature.

You may even want to do a quick search before getting too far along in your invention. That way if you find a similar item, you can refine your invention to include some unique feature to make it patentable. Even if you’ve done what you believe to be a good search, your patent application could still be denied. The USPTO’s examination of your application includes a thorough search, and it may find prior patents or descriptions you didn’t find.

3. Make sure your invention is patentable

Not everything is patentable, no matter how novel it may be. You cannot patent ideas, naturally occurring substances, or something without a legal purpose for example.

You can patent unique ways to use your novel idea or the substance you discovered.

Your invention will need to fall into 1 of 3 categories:

  • Utility patent. This is the most common kind. It covers completely new items or processes and significant improvements to those already in existence.

  • Design patent. This patents your inventions unique appearance and has nothing to do with an item’s function.

  • Plant patent. This protects a new plant you have discovered or invented that can be asexually reproduced.

It must also be:

  • Novel. This means different from similar products in at least 1 important way.

  • Non-obvious. The item or the difference from similar items should not be obvious to experts in the field.

  • Useful. It must work as intended and have a constructive purpose.

4. File a provisional patent application (PPA)

If you are filing a utility or plant patent, you have the option of filing a provisional patent application.

The USTPO will not examine this application, and will not grant a patent based on it. Instead, it acts as sort of a placeholder, allowing you to claim patent pending protection. This lets you do things like find investors for or manufacture your invention without worrying about anyone stealing your idea.

The provisional application is much simpler than a full application. You don’t need to make any formal claims, oaths, or declarations. The filing fee is also much lower.

This application is basically an easy, inexpensive way to give yourself some breathing room to figure out if a full patent application is worth the effort.

5. File a regular patent application within 1 year

If you filed a provisional patent application, you have 1 year from that filing date to file a regular, non-provisional patent application.

This application is much more complex, with specific rules for what must be included and the order in which it must be compiled. Some of the important details to include are these:

  • Specification. This is a written, detailed description of your invention, including its title, how it works, and how it’s made. If it’s an improvement on an existing product, it must explain exactly what that improvement is.

  • Claims. These statements define exactly what you are protecting with the patent. Claims can be independent or dependent. Independent claims are broad descriptions. Dependent claims are narrower and refer back to to other claims, describing variations or other limitations of those claims.

  • Drawing. When required, it must show every feature you describe. This may require multiple views.

  • Declaration or Oath. These required statements attest, among other things, that you are the inventor and you have made or authorized the application.

  • Application fee. This includes search, examination, and issue fees, among others. Fees are lower for filers who qualify for small entity or micro entity status.

You may file your application online using the USTPO’s EFS-Web. You may also file a paper application, but you’ll have to pay an extra, non-electronic filing fee. The best way to learn how to file a patent application is to start the paperwork. If this is your first time, you may want to have a patent lawyer’s help. That way you can be sure you have included all the right information.

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