How to File a Patent

If you have invented something, chances are high that you want to implement protections to ensure that no one else misappropriates or wrongfully takes credit for your idea. The best way to protect your invention is to obtain a patent. A patent will stop anyone else from legally producing, selling, or otherwise using your invention for their own purposes within the United States. Applying for a patent can be a complicated process, however, so you may want to consult with an experienced intellectual property attorney to ensure that you keep the legal rights to your invention.

Steps to File a Patent

Before you file for a patent, you must ask yourself the following questions:

  • Is my idea novel and non-obvious? If your idea is unoriginal or too obvious, your patent will likely be rejected.
  • Is my idea commercially viable? Patents can be expensive, therefore you want to make sure your invention will make money in order for a patent to be worth it.
  • Did I invent it? You may only patent ideas that are your own or of which you have ownership.
  • Am I willing to share the details of my idea? If you receive a patent, the details regarding the design and development of your invention become public knowledge. If you want to keep those details secret, a patent is not right for you. For example, the makers of WD-40 opted not to patent the product because they did not want to disclose the formula.

If the answer to the above questions is “yes,” you must next make sure that your invention or idea is not already patented by another party. You can search the online database provided by the United States Patent and Trademark Office (USPTO) found here.

After you have determined that your invention is original, you must make sure your invention qualifies for one of the three main types of patents. These three types  are as follows:

Utility Patent—This is the most common type of patent and is divided into the following five basic categories: process, manufacture, machine, composition of matter, or improvement on an idea that already exists. Your invention may fall into one or more of these categories. Examples of inventions that qualify for utility patents include computer software or hardware, housewares, cosmetics, magic tricks, chemical formulas, electrical circuits or inventions, food inventions, and many more. A utility patent can last up to twenty years.

Design Patent—A design patent is meant for inventions that are not actually functional, but that are aesthetic or ornamental. Examples of inventions that qualify for design patents include the glass Coca-Cola bottle, a piece of IKEA furniture, a certain design of jewelry, a Manolo Blahnik shoe, the design of the iPhone and related icons, and much more. A design patent currently lasts for fourteen years, though that time period is expected to change in the near future.

Plant Patent—This is rarest type of patent issued, and is reserved for newly discovered seedlings of plants or for non-obvious and novel reproduction of plants to form hybrids or mutants. A plant patent lasts for twenty years.

If your invention is original and fits into one of the above categories, it is time to fill out a formal application for a patent. However, you will need certain information to complete the application. The application requires the following parts:

  • Abstract
  • Background
  • Summary
  • Detailed description
  • Conclusion, ramification, and scope
  • Claims

With your application, you should additionally file a Patent Application Declaration (PAD), which declares that you are in fact the true inventor of the idea, and an Information Disclosure Statement (IDS), which includes any other information that you believe is relevant to your application.

Patent Prosecution

Unfortunately, filing a completed application is far from the end of the process. You will be assigned to one processor at the USPTO who will review your application and communicate with you. Usually, a processor will issue a “non-final rejection,” which means your application was not approved as-is, but you have the chance to amend it and try again. If your application is still not approved, you may receive a final rejection. However, there are still ways to amend your claims and appeal the decision even after a final denial.

As you can see, this process can be very complicated, lengthy, and involved. If you believe your product truly deserves a patent, it is always wise to seek the help of an attorney who is experienced in the patent process. An attorney can also advise you whether you should apply for a provisional patent prior to filing for a formal patent. Do not hesitate to contact our office today for assistance.

- Claire Kalia


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