How to Patent an Idea

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Contrary to what you may have heard on TV commercials, you can't actually patent an idea . The US Patent and Trademark Office (USPTO) issues patents for new machines or processes, not the mere idea of a machine or process. Before you can get something patented, you have to have an initial design to show how it functions. At that point, you can file a provisional application. A provisional patent application is relatively easy to file and will reserve your priority of invention for 12 months. This gives you time to work on the non-provisional application for a full patent. [1] When approved, your full patent protects your invention from the date you filed your provisional application. Full patents give you the right to exclude others from making, selling or importing your invention for 20 years from the priority filing date. Because the process of getting a patent is extremely complex, the USPTO strongly recommends that you hire an experienced patent attorney to draw up your non-provisional application. [2]

Part 1
Part 1 of 3:

Filing a Provisional Application

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  1. To be patentable, your invention must be something tangible that exists — it can't be a mere untested idea that you had. Beyond that threshold, there are 4 basic standards your invention must meet: [3]
    • Useful: your invention works and is capable of performing its stated purpose. [4]
    • New: your invention isn't in public use, hasn't been previously disclosed in any publication anywhere in the world, and hasn't been patented before. [5]
    • Non-obvious: the difference between your invention and any prior inventions isn't something that would be obvious to a person with ordinary skill in that area of technology. [6]
    • Adequately described: you must describe your invention in your patent application with enough detail that a person with ordinary skill in that area of technology could make it and use it themselves.

    Warning: You can never get a patent for laws of nature, natural phenomena, or abstract ideas.

  2. While a specific classification isn't necessary for a provisional patent application, selecting a classification will help you determine if your invention is patentable. Although provisional patent applications aren't examined, there's no point in going any further if a preliminary search shows that your invention clearly couldn't be patented. [7]

    Tip: Your choice of classification may affect the patentability of your invention. There may be a similar invention patented in one class but not in another.

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  3. Although you don't have to distinguish your invention from similar inventions that have already been patented (known as prior art ) in a provisional application, a basic patent search is still valuable. [8] If your invention has already been patented or disclosed in public by someone else, there's no value in proceeding beyond this point. [9]
    • To start a basic search, go to https://ppubs.uspto.gov/pubwebapp/static/pages/ppubsbasic.html . From there, you can search the USPTO's online database, which includes all patents issued since 1976.
    • If you were applying for a non-provisional patent, it would be better to have an experienced patent attorney conduct this search for you. However, you don't need to disclose prior art for a provisional application. You're just doing this search for your own knowledge to make sure you aren't wasting your time and effort on an invention that isn't patentable.
  4. The USPTO doesn't have a specific form you can use to file a provisional patent application. Rather, you must submit a document that contains the following information: [10]
    • A title for your invention
    • A written description of your invention
    • Drawings of your invention, if necessary to understand how it works

    Tip: You can find templates online for provisional patent applications that you can adapt to suit your needs. Just do a search for "provisional patent application template" or "provisional patent application sample."

  5. All provisional patent applications must be accompanied by a cover sheet, which you can download at https://www.uspto.gov/sites/default/files/documents/sb0016.pdf . The provisional application cover sheet must include the following information: [11]
    • The names of all inventors
    • Residential addresses for all inventors
    • The title of the invention
    • The name and registration number of your patent attorney, if you have one
    • The address for correspondence regarding your application
    • The names of any US government agencies that have a property interest in the application
  6. You must pay the application fee when you submit your provisional patent application. As of 2019, the undiscounted fee for a provisional application is $280. This amount is reduced to $140 if you qualify as a small entity or $70 if you qualify as a micro entity. [12]
    • Generally, you qualify as a small entity if you are an individual or small business with fewer than 500 employees or less than $2 million in annual profits.
    • To qualify as a micro entity, you must have a gross income less than 3 times the median household income in the US for the preceding calendar year. You must also generally meet the requirements for small entity status. You cannot qualify as a micro entity, regardless of your income, if you are listed as an inventor on more than 4 patent applications. [13]
    • To find the official US median income, go to https://www.census.gov/topics/income-poverty/data/tables.html and check the table for the applicable calendar year.
  7. When you've completed your application, you can submit it to the USPTO online or you can mail in the paper forms. Include payment of your application fee. [14]
    • If you want to submit your application online, use the EFS-Web, available at https://www.uspto.gov/patents-application-process/file-online .
    • You don't have to register with the USPTO to file your provisional application. However, if you decide to create an account, you'll have access to enhanced features, including the ability to save incomplete applications and submit amendments to applications you've already filed.
  8. Your provisional patent application is active from the date you file your application. However, a provisional application, by itself, doesn't give you any rights to prevent others from making or selling your invention. Rather, it buys you another year to complete and file your non-provisional application. [15] If you don't file your non-provisional application before your provisional application expires, your provisional patent application will be considered abandoned and you won't get the benefit of the earlier filing date. [16]
    • On the other hand, if you file your non-provisional application within a year of the date you filed your provisional application, when your non-provisional application is approved, you can sue for unauthorized use of your invention before you filed your non-provisional application, while you still only had a provisional filing. This is what it means to take advantage of the earlier filing date.
    • With a provisional application, you also have the opportunity to explore the commercial viability of your invention before you incur the expense of a non-provisional application.
    • You can use the phrase "patent pending" in connection to your invention if you want to put the public on notice that you are protected your intellectual property rights.
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Part 2
Part 2 of 3:

Completing Your Non-Provisional Application

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  1. Non-provisional patent applications are complicated documents with many technical specifications and formatting requirements. While you could try to do one on your own, you'll save a lot of time if you get your application drawn up by an experienced patent attorney. Go to https://oedci.uspto.gov/OEDCI/practitionerSearchEntry to find a registered patent attorney near you. [17]
    EXPERT TIP

    Harish Chandran, PhD

    Machine Learning Engineer & PhD in Computer Science, Duke University
    Harish Chandran is the Engineering Site Lead and Senior Staff Research Engineer at DeepMind, where he leads the engineering efforts to integrate AI research results into Google products. Harish received his PhD in Computer Science from Duke University in 2012. While in graduate school, he worked as a Teaching Assistant, helping undergraduate students learn about algorithms and data structures. He has experience in DNA self-assembly, evolutionary algorithms, computational neuroscience, complexity theory, computer architecture, and super-computing.
    Harish Chandran, PhD
    Machine Learning Engineer & PhD in Computer Science, Duke University

    A lawyer will help make sure you can enforce your patent. Anybody can file for a patent, but in order for that patent to have value, it has to be enforceable. That's why it's useful to have a law firm help you file, because you need to be able to win a case against someone who's potentially violating your patent. Otherwise, the patent won't be worth much.

  2. A prior art search for a non-provisional application doesn't just look at patent records, but at other inventions that may not be patented as well. If there's something that has been disclosed to the public that is similar to your invention, it can preclude your invention from being patented. A complete non-provisional application discloses all relevant prior art and distinguishes your invention from those other inventions that are similar or are designed to solve similar problems. [18]
    • Generally, it's better to let your attorney handle the prior art search. They have experience with classifications and patent terminology and may find prior art that you would miss.
    • Expect the prior art search to take several months. Your attorney will likely maintain an ongoing search while your application is being prepared in case something comes up later.
  3. The application data sheet is a summary of the information contained in your application. This sheet must accompany all non-provisional patent applications and must be signed by all inventors. You can download the form at https://www.uspto.gov/patent/forms/important-information-completing-application-data-sheet-ads . [19]
    • Generally, the data sheet includes the names and addresses of all inventors, information about your attorney, and information about your provisional application, if you have one.

    Tip: If you have one or more non-expired provisional patent applications on file, you must provide the application numbers and filing dates. Otherwise, you won't get the benefit of the earlier filing date if your non-provisional patent application is approved.

  4. The first page of your non-provisional patent application, also known as the specification , lists the names and residences of each inventor along with the name of the invention. Your invention can have a title of up to 500 characters. [20]
    • Make the title of your invention as short and specific as you possibly can. Your attorney will help you come up with the best title that represents the purpose of the invention and how it works.
  5. The background and summary section is a bit like telling the story. As the inventor, you are the hero of this story. Describe the problem you observed and the invention you created to solve that problem. Start at the beginning, with the initial observation of the problem and the inspiration you had that led you to your invention. Then, explain the steps you took to create, test, and perfect your invention. [21]
    • Along the way, you can discuss the prior art you discovered in your search and describe how none of those things solved the problem the way your invention does. This helps distinguish your invention from that prior art.
    • Describe people who are likely to use your invention and how their lives will be improved by it.
  6. Use clear, descriptive terms to describe the process of making and using your invention. Your description should be detailed enough that someone with average skill in the field could make and use your invention without having to go through a lot of trial and error. [22]
    • Specifically distinguish your invention from any related inventions that came before it or any other inventions used within your invention. For example, if your invention includes a wheel, you would need to be able to distinguish your invention from the wheel and explain how your invention is not simply an obvious improvement on the wheel.
    • If your invention is an improvement on another invention, keep your description solely to the improvement itself, not to the original invention (other than the description that might be necessary to explain how your improvement works).
  7. The claims are the heart of your patent application. Each claim lists a distinct thing that you are identifying as new, original, and patentable. Taken together, your claims define the scope of protection your patent provides. [23]
    • You can have independent claims, numbered consecutively with Arabic numerals. Each independent claim may have dependent claims that refer back to it. Dependent claims typically act to limit the independent claim to which they refer.
    • The general format involves labeling the thing you're claiming, followed by the word "comprising." After that, you list the parts of the thing, then explain how they are connected. For example, if you were claiming a sandwich, you might write: "A sandwich comprising: (a) 2 pieces of bread, and (b) peanut butter, and (c) jelly, wherein the peanut butter is spread on one piece of bread and the jelly is spread on the other, and then they are smashed together."
  8. The drawings are often the most important part of your specification. The USPTO has strict requirements for drawings, which are typically created by a professional draftsman. Your attorney likely has draftsmen they use on a regular basis. [24]
    • The drawings depict each of the distinct claims you make about your invention and must show every feature of your invention that you lay out in the claims. Most specifications contain many drawings showing many different angles or portions of the invention.
    • Make sure you have all the drawings that you need for the patent examiner to understand the invention. While you can amend your application later on, you won't be able to add new drawings because these are considered "new matter."
  9. The oath or declaration is a statement that you are the original inventor of the invention for which you've filed a patent application. An oath must be signed in the presence of a notary public. A declaration, on the other hand, does not have to be notarized. [25]
  10. When you submit a non-provisional patent application, you must pay the basic filing fee, search fee, and examination fee. There may be additional fees depending on the length of your application and the number of claims you make. [26]
    • For example, if you qualify as a small entity, you would pay a basic filing fee of $150, a search fee of $330, and an examination fee of $380, for a total of $860.
  11. You can file your application online using EFS-Web, through US mail delivery, or by hand-delivering it to the USPTO office in Alexandria, VA. However, if you choose the mail or hand-delivery option, you must pay an additional $400 non-electronic filing fee ($200 for small and micro entities). If you have an attorney, they likely will file your application electronically for you. [27]
    • EFS-Web allows you to check the status of your application, respond to USPTO office actions, and file amendments to your application.
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Part 3
Part 3 of 3:

Working with Your Patent Examiner

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  1. If your application is accepted and determined to be complete, it will be assigned to a patent examiner for examination. Because patent examiners examine applications in the order in which they've been filed, and because a single examination can take months (if not years, depending on the complexity of the application), it may be more than a year before you first hear from the patent examiner. This is known as your first office action. [28]

    Tip: Typically, your first office action will be adverse — even if you have an experienced attorney. Don't take this personally or think that your attorney didn't do their job. This is just how patent examinations work.

  2. You (or your attorney) will receive a written notice listing the reasons for any adverse action, requirements of the USPTO, and objections by the examiner. If you disagree with any of these, you can request reconsideration of your application. The notice includes a deadline for your reply. [29]
    • The examiner may reject some or all of your claims. If you're okay with a more restricted patent, you may choose to go forward without the claims the examiner disallowed.
    • If you disagree with the examiner, you must show how the specific claims are patentable.

    Tip: You can request a meeting with the patent examiner to discuss the office action. However, you're still responsible for getting your written reply in by the deadline.

  3. If you can make amendments that would overcome the examiner's objections or fulfill requirements the examiner did not believe you had met, you are generally free to do so. In your written reply to the examiner, explain how the amendments you made took care of the concerns they listed. [30]
    • When making amendments to your application, you are not allowed to add "new matter" to the application. For example, you can't add new drawings that explain how your invention works, even if those new drawings would overcome the examiner's objections.
  4. Typically, the examiner's second action is final. The examiner's notice will let you know whether your patent has been allowed or rejected. [31]
    • If the examiner makes the rejection of your patent final, you can appeal to the Patent Trial and Appeal Board. You can also appeal claims that have been twice rejected, even if your patent was allowed without those claims.
  5. If the patent examiner allows your patent, they will send a notice either to you or to your attorney. This notice includes the amount you must pay for your patent to be issued. You must pay this fee within 3 months of the date on the notice or the USPTO will regard your application as abandoned and you'll have to start all over again. [32]
    • As of 2019, the issue fee for utility patents is $1,000 ($500 for small entities, $250 for micro entities).
  6. Once your patent is granted, the USPTO will mail the certificate to you or to your attorney. On the day the patent is granted, it becomes searchable to the public in the USPTO's patent database. [33]
    • For your patent to stay active, you must pay maintenance fees at 3.5, 7.5, and 11.5 years from the date the patent is granted. There is a 6-month grace period for paying your maintenance fees, after which your patent may expire.
    • As of 2019, a small entity would pay $800 after 3.5 years, $1,800 after 7.5 years, and $3,700 after 11.5 years. [34] To find out how much you owe in maintenance fees check the most recent fee schedule on the USPTO website.
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Expert Q&A

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  • Question
    When is it a good idea to patent something?
    Jeremy Rutman, PhD
    Patent Attorney
    Dr. Jeremy Rutman is a Patent Attorney and the CEO and Founder of RutmanIP, a boutique intellectual property firm in Israel. With over 15 years of experience, Dr. Rutman specializes in drafting patent applications in various fields such as physics, computer hardware and software, electrical engineering, mechanical engineering, green energy, and software. He holds a BS degree in Physics from Harvard University, where he graduated cum laude, and an MS and Ph.D. in Physics from the Technion - Israel Institute of Technology. Dr. Rutman has extensive experience turning start-up ideas into strategic assets and has published his work in many leading professional journals in the field.
    Jeremy Rutman, PhD
    Patent Attorney
    Expert Answer
    If you believe that your idea is worthwhile enough and that it has commercial value, and you want to go after that commercial value, then there would be a case for patenting it.
    Thanks! We're glad this was helpful.
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  • Question
    How are patents enforced?
    Harish Chandran, PhD
    Machine Learning Engineer & PhD in Computer Science, Duke University
    Harish Chandran is the Engineering Site Lead and Senior Staff Research Engineer at DeepMind, where he leads the engineering efforts to integrate AI research results into Google products. Harish received his PhD in Computer Science from Duke University in 2012. While in graduate school, he worked as a Teaching Assistant, helping undergraduate students learn about algorithms and data structures. He has experience in DNA self-assembly, evolutionary algorithms, computational neuroscience, complexity theory, computer architecture, and super-computing.
    Harish Chandran, PhD
    Machine Learning Engineer & PhD in Computer Science, Duke University
    Expert Answer
    A lawyer will help make sure you can enforce your patent. Anybody can file for a patent, but in order for that patent to have value, it has to be enforceable. That's why it's useful to have a law firm help you file, because you need to be able to win a case against someone who's potentially violating your patent. Otherwise, the patent won't be worth much.
    Thanks! We're glad this was helpful.
    Thank you for your feedback.
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  • Question
    What is the difference between a provisional patent and a patent?
    Jeremy Rutman, PhD
    Patent Attorney
    Dr. Jeremy Rutman is a Patent Attorney and the CEO and Founder of RutmanIP, a boutique intellectual property firm in Israel. With over 15 years of experience, Dr. Rutman specializes in drafting patent applications in various fields such as physics, computer hardware and software, electrical engineering, mechanical engineering, green energy, and software. He holds a BS degree in Physics from Harvard University, where he graduated cum laude, and an MS and Ph.D. in Physics from the Technion - Israel Institute of Technology. Dr. Rutman has extensive experience turning start-up ideas into strategic assets and has published his work in many leading professional journals in the field.
    Jeremy Rutman, PhD
    Patent Attorney
    Expert Answer
    You can get a provisional patent while you work on your invention prior to filing for a regular patent. A provisional patent application reserves your priority of invention for 12 months.
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      Tips

      • If you have general questions about patents or the patent application process, call the USPTO's Inventors Assistance Center (IAC) at 800-PTO-9199 (800-786-9199). Patent examiners are available to answer your questions on this line Monday through Friday from 8:00 a.m. to 8:00 p.m. ET, except on federal holidays. [35]
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      • Keep dated records of your invention in a bound journal, detailing all of your steps in making your invention, tests of your invention and the outcome of those tests, materials used, and the time you spent working on it. Do not use a spiral notebook or binder, as pages can be easily removed or rearranged.
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      Warnings

      • This article discusses how to patent an idea in the US. If you live in another country, or want to get a patent in another country, the process will be different. Talk to an experienced patent attorney for more guidance.
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      • This article assumes you are filing a utility patent, which is by far the most common type of patent. You could also apply for a design patent or a plant patent. However, provisional patent application priority is not available for these types. [36]
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      • You may see ads for invention promotion firms on TV or online. These firms offer to help you develop your idea and get a patent, or find companies to develop and manufacture your idea. Research the firm's background thoroughly before you decide to use one of these firms — many of them are scams. You can read complaints published by the USPTO at https://www.uspto.gov/patents-getting-started/using-legal-services/scam-prevention/published-complaints/published . [37]
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      • Fees may change on a yearly basis. The fees listed in this article are accurate as of December 2019. Consult the USPTO website at https://www.uspto.gov/ for the most up-to-date fees. [38]
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      References

      1. ↑ Jeremy Rutman, PhD. Patent Attorney. Expert Interview. 5 January 2021.
      2. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents
      3. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-4
      4. ↑ Jeremy Rutman, PhD. Patent Attorney. Expert Interview. 5 January 2021.
      5. ↑ Jeremy Rutman, PhD. Patent Attorney. Expert Interview. 5 January 2021.
      6. ↑ Jeremy Rutman, PhD. Patent Attorney. Expert Interview. 5 January 2021.
      7. ↑ https://www.uspto.gov/sites/default/files/patents/resources/classification/overview.pdf
      8. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/provisional-application-patent
      9. ↑ Jeremy Rutman, PhD. Patent Attorney. Expert Interview. 5 January 2021.
      1. ↑ https://www.uspto.gov/sites/default/files/about/offices/ous/Cooper_Union_20130605.pdf
      2. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/provisional-application-patent
      3. ↑ https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule
      4. ↑ https://www.whda.com/sites/whdallp/assets/File/Small%20and%20Micro%20Entity%20Status%20Requirements.pdf
      5. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/provisional-application-patent
      6. ↑ Jeremy Rutman, PhD. Patent Attorney. Expert Interview. 5 January 2021.
      7. ↑ https://www.uspto.gov/sites/default/files/about/offices/ous/Cooper_Union_20130605.pdf
      8. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-9
      9. ↑ https://www.uspto.gov/sites/default/files/about/offices/ous/Cooper_Union_20130605.pdf
      10. ↑ https://www.uspto.gov/patent/forms/important-information-completing-application-data-sheet-ads
      11. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/nonprovisional-utility-patent#heading-9
      12. ↑ https://www.uspto.gov/sites/default/files/about/offices/ous/Cooper_Union_20130605.pdf
      13. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/nonprovisional-utility-patent#heading-9
      14. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/nonprovisional-utility-patent#heading-9
      15. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/nonprovisional-utility-patent#heading-9
      16. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/nonprovisional-utility-patent#heading-21
      17. ↑ https://www.uspto.gov/sites/default/files/documents/USPTO%20fee%20schedule_current.pdf
      18. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/nonprovisional-utility-patent#heading-3
      19. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-19
      20. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-19
      21. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-19
      22. ↑ https://www.uspto.gov/patents-getting-started/patent-process-overview#step6
      23. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-22
      24. ↑ https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-22
      25. ↑ https://www.uspto.gov/sites/default/files/documents/USPTO%20fee%20schedule_current.pdf
      26. ↑ https://www.uspto.gov/learning-and-resources/support-centers/inventors-assistance-center-iac
      27. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applicationsproceedings
      28. ↑ https://www.uspto.gov/patents-getting-started/using-legal-services/scam-prevention
      29. ↑ https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/provisional-application-patent

      About This Article

      Article Summary X

      To patent an idea, start by downloading the forms required for electronic filing from the U.S. Patent and Trademark Office website, and faxing or mailing in the completed forms to receive your customer number and digital certificate. After that, you’ll need to submit a description of your idea, along with an oath declaring that you believe yourself to be the originator of your idea. Once you receive confirmation that your documents were processed from the USPTO, fill out the patent application on the USPTO website and pay the required fee. To learn more, including how to file an appeal if your application is rejected, read on!

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