Starting the Patent Application Process

At this point you may have decided that your idea is probably patentable, and you would like to move forward with obtaining a patent. So, what’s next? A patent application. Okay, great! Pretty straightforward… Well, not really. Let’s explore what actually goes into the application process.

Now, before I go on, I want to caution you. Hiring a patent attorney may seem expensive, overwhelming, or daunting; however, we have years of training and even have to sit for a special bar examination before the United States Patent and Trademark Office to demonstrate our understanding and application of the various, nuanced patent laws. A recent article, published in April, demonstrates the low success rate of someone filing an application on their own behalf, versus hiring a patent attorney (read that article here).

Not intimidated yet? Ok, the first thing that goes into a patent application is a simple search. Typically, the first thing a patent attorney will do is a simple google search to see if your invention or idea is already out there. It is highly unusual to not find something at least related to your idea or invention. Next, what is called a prior art search will be performed. This involves searching for specialty keywords and classifications which can be found through the USPTO, to lead the practitioner to patents and any other publications that may be related to your idea or invention. Patents can be searched directly through the USPTO, as well as various other patent related sites. Additionally, there are companies that specialize in prior art searches. Beware, the cheaper the cost these companies are, the less quality results you should expect to receive. Not to say that paying $5,000 is going to find you more or better information than a $2,000 search would return. But, if you plan to hire a company, you should budget for at least $1,000 and expect to pay closer to $1,500 or $2,000 for a good quality search.

After your searches have been completed, the next step is acquiring drawings. The USPTO requires drawings as part of the patent application, and these drawings have to meet certain specifications outlined in their manual. Again, you will find several companies that specialize in only patent drawings. As far as budgeting for patent drawings, well that depends. It depends on how involved the drawings need to be, how many drawings you need, and what kind of information you’re already able to provide the company with.  Most companies will give you an estimate of the cost before they perform the work. It is also advisable to find a company that will work with you over the phone and not charge you for reworking the drawings. This way you can more accurately explain what you need shown in your drawings, as well as if something isn’t quite precise when you receive the drawings back, they will fix it for you as a part of your overall payment. Make sure, if you hire a company, that you have them number your drawings according to USPTO specifications. This is important in the application process because you will be required to reference your drawings and various elements of your invention by number in the actual specification portion of the application.


Only once these steps have been completed are you then ready to proceed with putting together your actual application. In our next installment, I will discuss that actual pieces of a patent application and how everything I’ve talked about today fits in to what you will need to file in the USPTO. Feeling overwhelmed or have questions about anything in today’s post? Contact me! Until next time, be kind and promote progress, don’t stifle it! 

Is my idea or invention patentable?

So you have an idea, or perhaps you’ve already created something. Awesome! But now you may be wondering, “Is my idea patentable?”

Whether or not your invention is patentable is governed by 35 U.S.C. §101 (Chapter 35 of the United States Code, Section 101). In essence if you invent or discover a new and useful process, machine, manufacture, or composition of matter than you may be entitled to a patent.

When applying for a patent, the first thing the examiner will look at is if you have met the requirement for 35 U.S.C. §101 – it is also known as the utility requirement. Typically, this is the easiest element to meet.  Additionally, 35 U.S.C. §101 has been expanded in the law through 35 U.S.C. §102 and 35 U.S.C. §103. The latter two sections expand on the language “new” mentioned in 35 U.S.C. §101. 35 U.S.C. §102 requires that your invention be new/novel, while 35 U.S.C. §103 requires an invention to be nonobvious.

Now, I know what you’re probably thinking, “That’s an awfully lot of law that doesn’t make a whole lot of sense to me.” But that’s ok! As long as you think you have invented something that has a use, it is new (has never been invented or discovered before) and is not obvious (you have found a unique solution to your problem that other people also seeking solutions to the same problem probably would not have thought of) – then your idea may be patentable, and it’s time to give me a call!

Don’t forget, that just because an idea or invention may not be patentable does not mean that it might not be able to be protected by another form of intellectual property such as a trademark, copyright or trade secret. Contact me so we can explore other ways to protect your idea or invention! Additionally, many people believe that they cannot bring their item to market because they don’t have a patent. Just because your idea may not be patentable does not mean you can’t still market and sell it, and in some cases be extremely profitable. Finally, just because you have a patent on your item doesn’t guarantee that your patented product will make you a millionaire either. A patent is simply a means of protecting your property, not a way to make money with your invention.

Now that I’ve figured out my idea or invention may qualify for a patent how do I go about the patent application process? Well, stay tuned for our next installment! Until then – be kind, and promote progress, don’t stifle it. 

What is a patent?

There are 4 areas of intellectual property: patents, trademarks, copyrights, and trade secrets. We will work our way through the logistics of each, so that you understand the differences and similarities and can figure out which area is best suited for your needs. So let’s begin with patents.

Patents are probably the most talked about, most focused on area of intellectual property. But, what exactly is a patent? A patent is a federally granted and recognized right to exclude others from making and using your invention without your consent. Essentially the federal government grants the patent holder a limited monopoly right in exchange for information. The federal government requires the patent applicant to describe in detail exactly what the invention is and the best way to make and/or use the invention.

There are several types of patents; utility, design, and plant. The utility patent is the most common. In 2015, the United States Patent Trademark Office (USPTO) received 629.647 patent applications – of those 589,410, or roughly 93.6%, were utility applications. Design applications made up 6.2%, and plant applications made up the remaining 0.2%.

The requirements for a utility patent are that it must be useful, novel/new, nonobvious, and include a full disclosure on how to make and use the invention. Each of these requirements will be discussed more in depth in a later blog post, so stay tuned for that information! A utility patent protects an invention that has some sort of use whether that use is something like holding your hair out of your face (a hair-tie or barrette) or to provide entertainment (such as a television or even a slot machine) and anything in between. A utility patent has a length of protection of 20 years from the filing date.

A design patent, on the other hand, only has a length of protection of 14-15 years (depending on when the application was filed). A design patent protects the aesthetic aspects of an article of manufacture. For example, the specific design of a sofa, or the aesthetic aspects of a piece of jewelry. Finally, a plant patent has a length of 20 years – just like a utility patent. The requirements of a plant patent include: it must be a new plant that can be asexually reproduced, must not be a tuber (essentially an underground stem of a plant – the most commonly known type is a potato). Additionally, though not technically required by the USPTO, but required in actual practice are colored drawings of the plant.

More about drawings will be discussed in the upcoming blog post about the patent application process. Until then, be kind and promote progress – don’t stifle