Updated September 9, 2022:

How to Patent an Idea

Learning how to patent an idea is an important process to understand so you can protect your ideas from others copying and profiting from your hard work.

Unfortunately, the filing process can be scary if you’ve never done it before. Taking an idea from conception to patent requires a large investment of time to research your idea and its market, create detailed drawings, and learn how to write clearly using very specific terminology.

If you follow our 5 easy steps you can protect your million dollar idea from competitors. However, as an important note, it is strongly recommended that you always consult with an experienced patent attorney for reasons outlined at the bottom of this article.

Steps to Patent an Idea

1. Keep a record of how you came up with the idea and your step by step progress

2. Research your idea to make sure it is eligible for patenting under established patent law

3. Make a prototype of your invention when filing a patent

4. Prepare your patent application and understand the cost, patent type, and possible provisional patent

5. Filing your patent application to obtain the actual patent that protects your invention or design

 

What is a Patent?

First, to begin patenting your idea, you must understand what a patent is. A patent is a legal grant or license from the USPTO that gives an inventor exclusive ownership rights to his or her invention over making, using, offering for sale, and selling the patented item or idea in the U.S.

What is not given is the right to make, use, offer for sale, sell, or import the idea. For example, if you get a patent for baby formula, it doesn't mean you have the right to sell or market your baby formula before passing through lots of regulations and tests. You only have the right to prevent others from selling or marketing what is covered in your patent claims.

Types of Patents

There are three types of basic patents recognized by the USPTO:

A Utility Patent is the most common patent type and is used for approximately 90% of patents. According to the USPTO, a utility patent is issued for the invention of a “new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof…” Utility patents protect its holder’s rights for up to twenty years from the date of patent application filing.

A Design Patent is issued for a “new, original, and ornamental design embodied in or applied to an article of manufacture…” In general terms, while a utility patent protects the way a product is used and works, a design patent protects the way a product looks.

A Plant Patent is issued for a “new and distinct, invented or discovered asexually reproduced plant…”

Can I Patent An Idea?

Technically, no. Ideas alone cannot be patented.

You can only obtain a patent on the invention developed from an idea. The invention must be actually produced or a description of the invention must be included with your patent application.

Am I the Right Person to Apply for a Patent?

In order to successfully obtain a patent, you must:

Be the inventor of the idea; or

Have been assigned the invention by another person; or

Be a legal representative (administrator or executor of the estate) of the deceased inventor; or

Be the co-inventor (contributing more than money) and apply for a patent as joint inventors; and

Not be an employee of the USPTO unless the patent is received as an inheritance or bequest.

Steps to Filing a Patent Application in 5 Easy Steps

Keep a record of how you came up with the idea and your step by step progress

Once you have your idea, it is important that you keep a record (such as a journal or notebook) of how you came up with the idea and your progress on that idea every step of the way. A well-kept record will provide you with proof that the work you put into the idea is all yours and may potentially help your creative process. Carefully detail everything you have done including corrections, improvements, and mistakes that happened before you started the process of filing for a patent. You should also consider signing and dating each entry and having two reliable witnesses sign as well.

However, it is important to also keep careful records of exactly who has been given access to your idea. Be sure to obtain non-disclosure agreements (NDAs) from all employees, contractors, and anyone else provided access. Your NDAs should always include an acknowledgment that all rights to your idea and any work done on your idea (by employees, contractors, etc.) remain owned solely by you. It is highly advised that you consult with your patent lawyer when drafting any and all NDAs associated with your inventions and potentially patentable ideas.

Research your idea to make sure it is eligible for patenting under established patent law

Research your idea and make sure that it is one that is eligible for patenting under established patent law. As discussed above, you can patent inventions, designs, and even some plants as long as your invention is:

It is important to note here that abstract ideas and natural phenomena cannot be patented.

Your research should include a USPTO patent search to make sure that a patent has not already been issued, or is pending, for your invention, design, or idea. You may additionally want to take a look at foreign international patents and review related scientific and technical journals. You can read more specific details in this beginner's guide to patent searching.

You should also consider some market research to determine if your idea, when developed, will make enough money to justify the time and cost of developing it into a patentable invention or design. Your market research will include an analysis of products on the market that accomplish similar tasks to your invention as well as an evaluation of your potential competitors.

  • New: Have you heard of this idea or something similar before?
  • Non-obvious: Is it something others can easily think of?
  • Useful: Can the idea be put to practical use?

Make a prototype of your invention when filing a patent

It is strongly recommended that you have a prototype of your invention when filing for a patent. A model or prototype of your invention highlights all the features in your inventor's journal. It also provides you with something tangible that you can show to potential investors and licensees. Most importantly, you may discover problems with your design during the prototype development process that will need to be fixed before obtaining your patent. The prototype development process may also bring to light features of your invention’s design that are themselves patentable.

Your prototype may be as simple as a diagram or drawing, but developing an actual working model, if possible, is the best way to go. Here are some guidelines for creating a prototype:

Start with a drawing. Sketch out your invention in your inventor's journal.

Develop a mock up in the form of a 3-D model.

Finally, create a fully-working model. If a prototype is too costly in real-life, consider a virtual (computer rendered) prototype.

Prepare your patent application and understand cost, patent type, and possible provisional patent

If you’ve successfully completed the above steps, it’s time to prepare and file your patent application. Here are the main issues you will need to resolve during the patent filing process:

A provisional patent application requires the inclusion of a specification but is filed without a formal patent claim, oath or declaration, or information disclosure statement. It must be followed up with the filing of the non-provisional patent application within 12 months. The application fee for a provisional patent application is $65 for micro-entities, $130 for small entities, and $260 for large companies.

Cost: The actual patent application process can be expensive. In some cases, filing for a patent can cost anywhere from $5,000 to $7,000 for a simple application and well over $16,000 to file a patent for something more complicated like a software patent. Startups may need to find investors or take out loans to fund their patent filing.

Patent Type: As discussed above, there are three main types of patents: utility, design, and plant patents. You will need to determine the right patent type for your idea, but in most cases, your choice will be a utility patent.

Provisional Patent Application: Before filing an actual (non-provisional) application for your patent, you may want to consider filing a provisional patent application. Not to be confused with the application for the patent itself, a provisional patent application is a document filed with the USPTO that establishes an early filing date for the subsequent filing for a non-provisional utility patent. It also gives the applicant “patent pending” status and the right to use the term “Patent Pending” in documents describing the invention.

Filing your patent application to obtain the actual patent that protects your invention or design

A non-provisional application, known as a Regular Patent Application (RPA), is what is filed to obtain the actual patent that protects your invention or design. In order to receive a patent, the application must contain words and drawings that clearly:

You can file your patent application yourself, but the USPTO recommends that you use a Registered Attorney or Agent. Filing can be done electronically, by mail, or by hand delivery. Most applicants file electronically, thus avoiding a substantial “non-electronic filing fee,” typically $400. However, it is important to note that all attachments must be in .pdf format and must be formatted to follow specific guidelines.

First-time filers will begin by applying for a Customer Number (for correlating all filings and correspondence) and Digital Certificate (for security purposes).

Your patent application will include a number of statements and attachments including:

You must also prepare drawings that show every feature in the claims. You can typically hire someone to prepare the drawings for around $75 to $150 per drawing sheet by searching online. Patent drawings have strict requirements for the materials, size, form, symbols that can be used, sharing, size of paper, margins, color, font, etc.

You will also need to include a signed and notarized oath from the inventor declaring that the inventor believes himself or herself to be the originator of the invention. The oaths can be found here:

Once you have received your authorization code and reference number through mail or phone after your certificate action form has been processed, here are detailed instructions on how to fill out your patent application using the USPTO's Electronic Filing System (EFS):

Demonstrate how to make and use the invention.

Explain why the invention is different from all other inventions.

Precisely describe what aspects of the invention should be patented.

  • You may also complete the Customer Number Request Form and fax it to the Electronic Business Center at (571) 273-0177, or mail it to Mail Stop CN, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. For help completing the form, contact the USPTO at 1-800-PTO-9199 (1-800-786-9199) and select option 2.
  • You can also fill out the Digital Certificate and mail the completed form to Mail Stop EBC Customer Number, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450.

A specification attachment called the “narrative” section of the application. It should include:

A description of the invention.

Prior art.

The reason or purpose for the invention.

An explanation of the invention detailing: how it is constructed, what it is made of, and how it works.

A written claim that follows these strict requirements:

The claim should be written in sentence fragments starting with a capital letter and ending in one period with no quotation marks or parentheses.

A statement of the independent claim that is a broader description of the item.

Dependent claims after the independent claim that are descriptive remarks and drawings of the invention broken down into single parts of the item.

  1. Log into EFS.

Upload your digital certificate and enter the password assigned when applying for certificate

  1. Fill in bibliographic data.
    • Name of invention
    • Name and address
    • Customer number
  2. Attach prepared .pdf documents and enter the category and description of each document you attach
  3. Calculate filing fee by checking right boxes on the calculation tool
  4. Review each attached document and application form and submit
  5. Pay with credit card, USPTO deposit amount, or electronic funds transfer (EFT). (If you decide to pay later, you need to pay by midnight EST on the day of filing to avoid additional fees.)

Following your Application

Once you have filed your patent application, the USPTO begins its process of review which will include a thorough patent search. You will then receive a patentability opinion, called an “Office Action.” In most cases, the Office Action will indicate denial of the patent which will trigger one or more rounds of responses from you and the USPTO. If rejected, you or your patent lawyer can appeal the decision and respond why your idea is patentable or make amendments to your application. If you receive a Final Office Action, it indicates that the patent examiner disagrees with your response and you can file either a second response and/or a Request for Continued Examination.

If all responses are met positively, the USPTO will issue a “Notice of Allowance,” which indicates that you will receive a patent once you pay the required Issue Fee. You can expect to finally receive your patent approximately one to three months after the Issue Fee is paid.

Overall, the time between filing for and receiving your patent is typically one to three years. However, once your patent is granted, your invention or design will be protected for 14 to 20 years depending upon the patent type.

After receiving the patent, remember that the inventor must enforce the patent after it is issued. You also may want to consider avoiding Patent Promoter Scams or Invention Promotion Companies. You can do this by:

  • Searching the FTC for “invention” which brings up companies that have been investigated and/or penalized for invention related wrongdoing
  • Check the BBB for the potential promotion firm
  • Consult your patent attorney
  • Ask detailed questions to your invention promotion firm like:
    • Number of inventions the promoter has evaluated in the past 5 years and how many received positive and negative evaluations
    • Number of customers who have contracted with the promoter in the last 5 years
    • Total number of customers who are known to receive profit from their services
    • Total number of customers who are known to have received license agreements for their inventions because of their services
    • Names and addresses of all previous invention promotion companies that the promoter and its officers have been affiliated with for the past 10 years

Why Hire an Experienced Patent Lawyer

At this point, it is very important to note that you should strongly consider hiring a patent lawyer.

A patent lawyer does not just file a patent for you. An experienced patent lawyer makes sure that the patent you submit will actually protect your million dollar idea and offer you a monopoly by making the language in your patent application as strong as possible with solid claims offering the largest amount of protection possible for your invention.

As an example, getting a patent could be relatively easy if you used extremely narrow claims like making a prototype out of a certain type of plastic. Although you know that technically you could use another type of plastic to manufacture the item, but unless you specifically say so, the USPTO may only let you patent items using that specific plastic. If another person were to make the exact same item with a different plastic, you would have no protection. There are a lot of different details about a patent application that can limit what you patent, but if you layer enough specific parts together, you can turn practically anything into something that is new and not obvious.

The most important question about your patent is:

Are you actually going to be able to prevent your competition from making, using, selling, or importing your invention based on the claims you are likely to receive?

The most important thing a patent does is give you the right to exclude others. However, for a patent to really offer you a monopoly, it requires a strong patent with solid claims.

Patent lawyers are experts who understand the technical language of particular industries and the best way to increase the amount of protection for an invention while still getting the patent passed by the USPTO. They are typically programmers, scientists, engineers, or technicians who have gone to law school and passed the state bar exam and patent bar exam.

In addition, a patent lawyer doesn't just help you draft a patent application. They also help you:

  • Determine patentability of the item and whether it is new, non-obvious, and useful
  • Create, document, and file all application documents including descriptions, claims, drawings, and other forms
  • Perform patent research in the US and internationally to prevent patent infringement
  • File the regular or provisional patent application
  • Pay for the applicable patent application fees
  • Defend your patent during the application examination process

The process above details getting a non-provisional patent, but even if you are just looking to file a provisional patent by yourself, it is still important to note that a provisional patent still must be very detailed on how to make and use your idea. Drafting the provisional patent application could easily take a few hundred hours of research, patent searching, reading, writing the application in a specific terminology, and creating drawings per application. You must also manage this entire process and meet the deadline for filing your non-provisional patent within 12 months. All of this would be needed for just a provisional patent which is typically less than 10 pages and written in an informal style.

At the very least, if you are going to write your own patent, it is always a good idea to at least have a patent lawyer look over what you have written. Although this is cheaper, writing it yourself is far more time-consuming. If you are concerned about cost, you can always ask the patent lawyer to have a cap in place beforehand.

It is also important to note here that there is a difference between a patent agent and patent attorney. Patent agents cannot represent parties in litigation or perform any activity considered the practice of law. They can prepare and file the application, respond to letters from examiners from the USPTO, and participate in revisions. However, patent agents cannot advise the person of the legal consequences of the ownership of the invention (ex: divorces or making a will).

If you want to make sure you protect your million dollar inventions from others simply copying your hard work, post your job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average of 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.