Think you’ve got a million-dollar idea? You’re not alone. There’s always a few people out there at any moment, convinced they’ve got the next big app or the next popular product, while infomercials spark new ideas. But it takes a lot more than an idea floating around your head to actually make it a reality.
You can’t simply patent an idea. A patent gives you legal ownership over your product and your right to manufacture and sell it; you’re going to have to put the effort in if you want to get a patent an intellectual property you think can make you a lot of money.
It’s also important to remember that getting a patent is not, by itself, the way to get your idea off the ground. This is just chapter one in a long journey. And considering this chapter alone can take years, you’re gonna need some patience. This is only the beginning.
How to Patent an Idea
Here are the steps you’ll need to go through if you want a chance at getting your idea patented.
Step 1: Hiring a Patent Attorney
Sure, it’s possible to go through the patent application process without an attorney. But going it alone is incredibly risky. You’re being asked to put an incredible amount of work into a field you may know little about. If you believe you can create a quality patent without the help of a lawyer, you’re free to try – and you may be right. But if you have the money to afford one and prefer the convenience, you may want to look into a patent lawyer.
Patent attorneys have passed both the bar exam for the state they practice in and a patent bar exam. They bring in a thorough understanding of how the patent process works and, depending on the attorney, a wealth of experience. That way you have someone who knows the ins and outs of the law to help.
Patent lawyers also have an office of associates at their disposal to do much of the legwork. They can comb through patent archives for you to see if any ideas are too similar. With that out of the way, they can begin drafting up your initial patent application.
This can all be incredibly helpful – not just in terms of having experts to help a novice, but in saving you time as well. The detriment to you, unsurprisingly, is the cost. Without an attorney, a patent application by itself will end up being around $900. With an attorney that figure quickly pushes into the thousands and, depending on the complexity and type of product – such as software – could be tens of thousands of dollars.
For this reason, you may be inclined to find a cheaper option for getting help. Patent agents can put together patent applications for you, and even help appeal them. But they can’t provide the other legal counsel a patent attorney and his or her team can. However, patent agents generally offer a flat fee for their services as opposed to hourly fees.
Then there are invention firms. They claim to provide analysis of how likely your idea is to get patented and promise to do research of their own.
Be forewarned, though: These options bring incredible risk. People can get suckered in by the allure of cheaper prices and end up getting completely scammed. Research these firms thoroughly with the Better Business Bureau and Consumer Affairs to make sure they’re legit; not all of them are.
Of course, if this all seems too expensive and/or stressful, you are allowed to go about it on your own.
You have the initial idea that you think can be a big hit, but do you have the details of it? That should be your first priority. Imagine going through weeks of patent searches and thousands of dollars to file a patent application – only to find out later that it isn’t a feasible idea. Everything should be in place before you even search through existing patents.
Taking your idea from concept to product is a lot of labor, as you really have to figure out what it is about this product that is practical and separates it from the rest. Good illustrator? Get to drawing out your product and getting a sense of the dimensions and physicality of it. Not a good illustrator? You can look into finding a patent illustrator and acquiring their services. Perhaps even consider 3D rendering.
You need to take this from an idea to a tangible invention. In doing that, you will get as full an understanding as possible of what it is you’re looking to patent and sell. What are the specifics of how it works; what does it looks like; and how will you tinker with it to make it more convenient or practical?
Perhaps most importantly for the process, if you understand all of this about your own product, you’ll also understand what to search for to see if there is something similar.
Patent searching is time-consuming, intricate and just generally a pain. It is the most important part of the patent process.
Because it can be such an arduous process, often the patent search is left to the associates of patent attorneys, but be warned: This alone can cost you more than $1,000. And if it turns out that an identical product exists, you’re back at square one. Patent attorneys provide thorough searches and can walk you through next steps should a patent exist, but it may be smart to perform your own search first.
Most commonly, it is done through the website of the United States Patent & Trademark Office. There are other methods, including Google, but for now let’s focus on USPTO.
The USPTO outlines a seven-step process for searching through published patent applications. The steps are as followed:
- Brainstorm related terms to your invention.
- Search initial patent classifications using the box at the top of the USPTO’s website. Search “CPC scheme ,” inputting a keyword for your invention.
- Once you find a relevant classification, verify its relevancy to your invention.
- Retrieve patents under this classification using USPTO’s Patents Full-Text and Image (PatFT) database.
- Review relevant patents in-depth, from notes to drawings to specifications. USPTO also recommends checking the references cited in patents, as it may lead you to other patents you can review.
- Repeat the retrieve and review steps but with USPTO’s Applications Full-Text and Image (AppFT) database.
- Broaden your search. Use other keywords. Try other sites. Search for non-patented inventions.
Let’s go with an example. Pretend a few years ago you had an idea for a garbage can cover that opens by sensing motion. That quickly leads to brainstorming a few easy search terms – garbage can, motion sensor, motion activated, etc.
We can type in “CPC scheme garbage can” in the search box and quickly there’s a relevant classification in the results to look through: Gathering or Removal of Domestic or Like Refuse. Click on it and there are a ton of sub-classifications for trash receptacles under this. There’s a subcategory for Lids & Covers, and within there is Electromechanically Operated Lids.
Search the code given for this in PatFT (found on USPTO’s site under Quick Links) and you’ll find plenty of patents to search through. One, for example, is referred to as “Induction automated cover assembly.” Click on it and then view images. You can view the PDF of the full applications which not only has renderings and specifications, but a full breakdown of how it works. Turns out it detects motion. This idea has already been patented.
This is, of course, a general idea that we very quickly found an idea for. Having a more detailed, specific idea will lead you down a much more intense rabbit hole of searches. This is why so many inventors often defer to patent attorneys and agents, who know how to navigate the system at its most complicated.
Step 4: Applying to Patent an Idea
You’ve got your prototype and the designs. You’ve taken your time combing through patent archives and found that you’ve actually got yourself an original invention. It’s time to get that patent application ready.
First off, make sure you can even apply for one. If you invented the product, you can apply for the patent. If you’re a co-inventor, you have to have made contributions beyond financial ones, and apply jointly with the other co-inventors. If an inventor is deceased or incapacitated, legal representatives are allowed to apply for them. USPTO employees are legally prohibited from applying for a patent, except in the event of an inheritance.
There are a few different basic types of patents. In all likelihood, you’ll be applying for a utility patent; these make up the overwhelming majority of patents. A utility patent is given out to inventions seen as a new and practical:
- article of manufacture; or
- composition of matter.
This is a wide-reaching spectrum of inventions, encompassing entities beyond what one might normally think of from the word “invention.” Computer software falls under utility patents (like Mastercard recently patenting a blockchain system), as do prescription drugs (like eteplirsen, the muscular dystrophy drug).
Another notable patent type is design patent, which, true to its name, is a patent not on the tangible object but its design. There is also a plant patent for anyone who may discover or invent an asexually reproducing plant.
Some inventors choose to file a provisional application for their patent before the actual application. A provisional patent application gives you a set date to have a patent application ready; by providing a simple breakdown of your invention, you are given a 12-month window to complete a full application.
There are a few reasons someone might start off with a provisional application. For example, you now have 12 months to put the finishing touches on your invention and explanation to help improve your chances of getting a patent. With the provisional one submitted, you are also automatically given a label of “patent pending,” meaning you’re legally protected from infringement.
It’s also much cheaper. An individual filing for one would count as a “small entity” which is a base fee of $130, though factors like your yearly income could make you a “micro entity” and bring that down to $65. Though if you have a complex invention with a lot of pages, you’ll incur additional fees.
Your application needs to, in full detail, specify what your invention does, how it is made and how it is used. You’ll need to write your claim for how this invention is the next step in the progression of a product and how it provides solutions or improvements to previous products’ problems and flaws. You’ll need extensive drawings that definitively depict what your invention will look like and how it is put together. Other specifics you may be interested in can be found on USPTO’s website.
You’re now able to file patent applications online, and it’s recommended: there’s an additional $400 fee for non-electronically filed applications. You can file on their online application system, EFS-Web, both as a registered and unregistered user, and it allows for online payment as well. As long as you have a properly prepared application and pay your fee, you can then also track your application’s status online. Your invention patent is now on its way!
With your product now officially “patent pending,” you can technically begin marketing it. But only as long as it’s actually patent pending; you could be fined for falsely claiming it.
You’re not protected from infringement during the patent pending period; however, being able to put the words “patent pending” on the label provides thieves with a fair warning: Should the patent get issued, you will be able to take legal action against them. In the meantime, though, you’re well within your rights to send them a cease-and-desist letter.
Get a head start on marketing your idea and getting the word out. As I stated earlier, the patent is just the beginning for creating a successful product.