If you are an inventor, you probably know that you need a patent to protect your idea from copycats profiting from your idea. What most new inventors are unsure of is the actual patent process and how involved it is. The actual steps you need to take will depend on what type of patent you are eligible for. You may find that you will only be able to protect your invention as a “brand” via a design patent or maybe even a trademark.
Assuming you are able to file a for a utility patent, here is a basic overview of the patent process you will encounter while dealing with the United States Patent & Trademark Office.
The first and most obvious step is the question whether your idea is out there or not? This is best answered by a comprehensive patent search performed by a licensed patent attorney, however you can perform your own basic research through the google patent search tool, or via the USPTO patent search site. Remember not to get discouraged from your findings here, you may still have an idea or improvement on an existing idea that has features not covered by an existing claim.
Provisional or Non-Provisional Patent
If you find that you are able to continue with your utility patent application, you next need to decide whether a non-provisional or provisional patent will suite your current patent goals. A provisional patent is a much more affordable option, but will only protect you for a period of a maximum of 12 months. A non-provisional patent is much more involved (and costly) but will provide you with patent protection of 20 years. The answer to which is better really depends on your resources, the idea, and your goals for the product.
Three Track Patent System
Another consideration is when you want your patent. The USPTO recently introduces a three track system that allows you to choose how quickly you would like your application processed. For a extra fee you can opt for the accelerated examination which can grant you a patent within 12 months. This is compare to the 2-3 year average experienced by inventors prior to the new options. For more information on the USPTO Three Track System, see our blog post following the program’s announcement.
Choose a Patent Attorney
If you have not used an attorney yet, now is the time to decide if you want to continue on your own, or let a professional handle your application. We highly recommend having a patent attorney submit your application. Not only are they familiar with the USPTO processes and procedures, they are accustomed to writing comprehensive claims, which are essential to protecting your invention from infringement and modifications that can eat away at your profits. While we promote a Do It Yourself approach to most of the inventing process, a cheap patent will only hurt you in the long run. For help on choosing the right patent attorney, see our article.
If you do decide to file the patent application yourself, you need to apply for a customer number and digital certificate from the patent office. This entails printing some documents downloaded from the USPTO and faxing the completed forms back to the United States Patent & Trademark Office. Complete instructions on becoming a new customer can be located on the USPTO website located here. Once you obtain the required information, you are ready to efile your utility patent application.
The USPTO will now assign a patent examiner to your case and inform you if your idea is patentable in an office action. This response can be a “final” or “non-final” office action. If the application has not been allowed or approved, and is a non-final office action, the inventor will have the opportunity to respond with or without an amendment for reconsideration. If an application has be rejected with a final office action, the inventor can still request reconsideration, but must do so to the Board of Patent Appeals and Interferences or respond to the rejected claims with appropriate amendments.
Once the application has undergone examination and has either been approved or amended to be considered patentable, the inventor must pay the issue and publication fees in order for the patent to be granted. After payment has been made, you receive your patent. You might think this is the end of the patent process, but unfortunately for your wallet, it is not. The USPTO requires you to pay patent maintenance fees to keep your patent status active. These fees are due every 3.5 , 7.5, and 11.5 years, and for a small entity (individual inventor) these fees are $490, $1240, and finally $2055. While it seems like the USPTO is simply trying to make more money from YOUR idea, and they are, their alternative motive is to encourage technological growth by preventing ideas from becoming stagnant. With a sliding scale of fees, inventors that are not making money from their patents are less likely to pay the higher fees as their ideas age.