If you’re a maker or a creative person with a lot of innovative technology ideas, at some point you’re likely to find yourself pondering how to patent an idea or a product you’ve created.
We’ve previously covered how and why to copyright, which protects intellectual property like writing or photography. We’ve also done fun articles about brand trademarks, which is a design or logo that identifies a product or service (a brand). In this article we’re going to cover the patent process, especially from the perspective of a maker.
Keep in mind that this article isn’t intended to provide legal advice. If you’re worried that someone may get your idea patented before you do, and you have a lot to lose (money or time), then it’s always good to play it safe and invest in a patent lawyer. However, if you’re interested in the general process of patenting an idea, then read on.
How to Patent an Idea or Design
In general, this is a quick overview of the patent process in the US, which we’ll explore in more detail futher in this article.
- Decide why you want a patent.
- Determine if your idea qualifies for a patent.
- Fully document your new process or design. Building a working prototype is always a good idea.
- Decide if you should use an attorney.
- Perform a thorough patent search (preferably pay for one).
- Apply for a provisional patent application (PPA) if you need one.
- Develop and test your idea to prepare for the non-provisional patent application process.
- Submit your patent application.
- A patent examiner will review your application and determine if you are entitled to receive a patent.
That’s the summary version. Now let’s dig into the details. If you’re more interested in a particular step, feel free to scroll down the article to that section.
1. Why Do You Want a Patent?
Do you have dreams that your innovative, futuristic idea will make you lots of money? Do you have visions of corporate lawyers beating down your door with offers to purchase rights to your idea?
Before you go too far down that road, it’s important to understand that patents alone won’t make you rich.
Take Thomas Davenport, for example. Here is Mr. Davenport’s patent, which he finally received in 1837, after numerous failed attempts.
Davenport was just a blacksmith from Vermont, but his exposure to the magnetic machines used to separate iron ore gave him the idea to build a device that would convert electricity into mechanical movement. The first DC electric motor.
Davenport sold many of his possessions (and even a horse) to obtain one of those electromagnets. He and his wife spent years experimenting and perfecting his machine, and finally received his patent in 1837.
After that, basically nothing happend. He set up a laboratory in New York to produce and promote his engine. But his expensive and erratic DC motor couldn’t compete with the steam engines of that era. Davenport eventually died without making a dime off his patent.
It’s a cautionary tale. It doesn’t mean your patent won’t serve you well, but a patent should be looked at as the first step toward getting your idea into a market — not a get-rich-quick scheme.
2. Does Your Idea Qualify for a Patent?
When considering whether your idea or design will qualify for a patent, you first need to consider what type of patent it might fall under. There are three types:
- Utility Patent: Defines a new process or an improvement to an existing process, or how a machine or device works.
- Design Patent: Defines the appearance, or how a device or object looks.
- Plant Patent: Focused on agriculture, this patent defines a new variety of plant.
Most inventors who’ve come up with a brand new idea for a device or a gadget will be interested in a utility patent.
The United States Patent and Trademark Office (USPTO) has a very clear set of guidelines for inventions that qualify for a patent:
- Usefulness: The idea should have a “useful purpose” and practical — meaning if you’ve dreamed up an idea for a washing machine that washes clothes using some unique process that doesn’t involve water like most other washing machines, you should be able to prove that such a machine can realistically operate as described.
- Not Created by Nature: The idea can’t involve something created by “the laws of nature” or “physical phenomenon”. For example, if you’re exploring a remote jungle and you discover a new species of tree, you can’t patent it.
- Not Just an Idea: If you only have an idea that you’ve scribbled on a napkin during your lunch hour, and you think you’re going to be able to patent it, think again. The USPTO states “A patent cannot be obtained upon a mere idea or suggestion”. Be ready to outline the operation of your new invention in great detail.
- Novel and “Non-Obvious”: The idea needs to be sufficiently unique or new. Obviously an existing patent or product in the marketplace can’t exist already. Even a presentation or scientific meeting, or a demonstration at a trade show could potentially bar you from patenting the idea. There are a lot of legal loopholes here, so if you feel you came up with the idea first, it’s time to reach out to a patent lawyer and make your case.
- Non-Creative: This refers to intellectual property like writing or art. Patent law doesn’t cover this, copyright law does.
The most obscure definition above is “non-obvious”, but even this becomes clear once you start looking at the industry the patent falls under. According to attorney Matthew Hickey of RocketLawyer.com:
“Courts examining whether an invention is obvious will look at the scope and content of the existing knowledge and technology in that industry, the level of what constitutes ordinary skill for that industry, the differences between the claimed invention and what’s already common in the industry, and any other objective evidence to suggest that your new idea is not obvious.”
If you really know what you’re doing, then you’ve probably been involved in your industry for quite some time and you should already be aware of what experts there would consider “obvious”.
3. Fully Document Your Idea
The simplest first step in your application process is to describe your invention idea. You should do this in a formal way, and actually have a witness (and even a second witness) sign your description.
The Docie Invention & Parent Marketing company actually provides inventors with a free worksheet to use to do this. The key elements of this worksheet include a very thorough description of how the device works, and a drawing. If you need inspiration for how to draw your invention, just look at patents that go back as far as the early 1800s.
These drawings are usually three views: side, top, and front.
If your idea is more of a non-physical idea, like an application or a new way to transfer information across the internet, just document the logical flow or the concept in some clear way. It doesn’t have to be overly complicated. Look how Google illustrated its idea when it applied for a patent for Page Rank.
It’s not exactly an Edisonian masterpiece. But it worked.
Keep in mind that this is not your patent application. It’s your first step in that direction by documenting your idea on paper and getting witnesses who will support you when you claim that it was originally your idea.
4. Do You Need an Attorney?
Legally, the USPTO does not require you to hire an attorney. You can file for a patent yourself, and patent examiners will in fact help you through the process as much as possible. However there are some situations where you really need to invest in a lawyer in order to protect your idea:
- You aren’t sure if your idea qualifies. This means, you need someone with a thorough understanding of patent rules and laws surrounding the qualification for patents.
- You aren’t confident doing a patent search. Patent attorneys hire professional patent researchers who pour through the USPTO database for similar ideas. You could bypass an attorney by hiring an expert yourself, or using an online service. You can conduct the search yourself directly at the USPTO patent search page.
- Your idea is really lucrative. Let’s say you’ve just invented time travel. The way you phrase your patent claim will be used in patent court in the future whenever someone else tries to make whatever you’ve invented. If the chances of this are high, then you should have a lawyer help you write a claim that covers all of the bases well.
- USPTO objects to your claim. If you’re in the process of negotiating with the patent office and you feel like they’re giving you an unusually difficult time, a patent attorney can help you negotiate things in a way the USPTO expects. It may be that your patent examiner underestimates your knowledge, so having an attorney can give you more clout.
Whatever you do, don’t leave a good idea on the table, or ruin your odds in the future of protecting your patent. Doing it right the first time around could save you a lot of money in the future.
5. Perform a Patent Search
As explained above, an important step in your patent application process is to make sure no one has already invented your idea. This isn’t just to see if your idea exists, it’s also to search for the most relevant patents to yours. Part of your patent application will need to include a listing of these, and your explanation as to why your own invention is unique from those referenced patents. This shows your patent examiner that you’ve done your homework.
There are so many resources online these days to do thorough patent searches that you should be able to do it yourself. One of the best resources on the web is of course Google Patents. Leave it to Google to also include an analysis of all patents on the right margin of the results page.
It makes sense to use one of the most powerful search engines in the world to super-charge your patent search. But there are lots of other resources online that can help as well.
- Google Advanced Patent Search: Lets you search on fields like Original Assignee, Date or Date Range, or even filter by Patent Type.
- Patentscope: Lets you search not only U.S. patent collections, but even patents from around the world. It includes language translation as well.
- Resource Centers: The USPTO also has brick-and-mortar facilities in every U.S. state where you can physically visit and use tools like PubEAST and PubWEST. These are the tools patent examiners use to search for existing patents, so having access to the same tool is a great advantage.
If you live near a USPTO resource center, it’s the best place to start your journey. There are library staff available who can help you use the search tools, and even guide you in the right direction wherever you are in your patent journey.
6. Apply for a Provisional Patent
Sometimes you’ll hear people say they’ve received a “provisional patent”. That’s a bit misleading. There is only one kind of patent: non-provisional. What a “provisional” patent application lets you do is become the “first to file” under USPTO rules. This means that if you and other people are racing to develop some kind of innovative new product, by filing the provisional application, you’ve basically gotten into line for your non-provisional patent first and you’ve blocked anyone else from filing a patent for that idea, for up to 12 months.
If you’ve ever seen products that say “Patent Pending” stamped on the side, it’s because that company only submitted a provisional patent application, and then raced their product to market before actually receiving their final patent.
The provisional patent is especially useful in a marketplace with a lot of competitors seeking to develop new innovations, and start capitalizing on those in the marketplace long before the patent process plays out.
But be very careful with the description of your invention on your provisional patent application. The last thing you want to do is lock yourself into specific design parameters that you may realize don’t work once you start trying to create your production line.
Here are the steps to apply for a provisional patent:
- Use the Provisional Application Patent page at the USPTO website as a guide.
- Create a cover sheet including your name(s), address, invention title, name of attorney, and any US Government agency “that has a property interest in the application”.
- Include the thorough written description and the drawings you created in Step 3 of this article.
- Include the fee payment as defined on the USPTO application page.
- You can mail the package to the address on the application page, or use EFS-Web to submit it electronically.
Once you submit this application to the USPTO, you have the right to use “Patent Pending” on your invention.
7. Develop and Test Your Idea
Now that you have a provisional patent application in place, it’s time to develop a working prototype. It should be something you develop that you can have real users test so that you can refine the design and end up with a solid, working example of your idea.
After you’ve filed your provisional application, you have 12 months to prepare for filing your non-provisional patent application. What should you be doing in those 12 months?
- Experiment with and perfect your prototype
- Find financial investors and sponsors
- Conduct thorough market and sales research to determine market potential
- Search for companies that may be interested in licensing deals
It’s very important to file for your non-provisional patent within the 12 month window, because no extensions are allowed.
8. Submit Your Non-Provisional Patent Application
You’ve done all of your homework. You have investors, and several potential licensing deals. You’re ready to get the ball rolling on your patent.
The best place to start to make sure you’ve covered all the bases, and you know everything to include in your application, is the USPTO’s application filing guide. According to the USPTO, this application must include all of the following elements:
- A transmittal form or letter: This describes the claims, specs and drawings of your invention.
- All applicable fees: See the fee schedule for current application fees.
- The data sheet: This provides inventor information.
- Specification: This describes in full how the invention works in a way that any expert in the field could make it themselves — search past patents to see good examples.
- Drawings: These will be very detailed illustrations of your invention, in three dimensions.
- A Declaration or Oath: There are forms available in the application filing guide for this so you don’t have to start from scratch.
- Extras: Nucleotide and Amina Acid sequence, or large tables or computer listings, if required. These are biological or computing related attachments that you may not need to include depending on your patent.
Make sure to find a mentor who has gone through the patent application process. Each time you go through it, you’ll learn new things, and talking to someone who has learned those lessons already can save you a lot of time and trouble.
The Pride of Owning a Patent
Throughout history, men and women have been filing patent applications and receiving protection from the US government for their intellectual property. Being a maker today is no different than being an inventor in the early 1800s, where the sky is the limit when you use your imagination to create new things.
Have you ever filed a patent with the USPTO? How long did the process take you, and what tips do you have for other people who are working their way through the application process?