How to Apply for a Patent

How to Apply for a Patent

Author: Anna Nickerson
Date: 10/5/2020

You have a great idea for an invention, you’ve done your due diligence, market research, and necessary research & development. Hopefully, you’ve completed a patent search and you have a holistic view of how your product stacks up to the rest of the market. So, what’s next? It’s time to apply for your patent and turn this idea into a reality. 

Before filing for a patent through the United States Patent and Trademark Office (USPTO), you’ll need to ensure that you’re ready. You don’t want to rush this process! Let’s break it down into steps:

Answer the following questions


Do I know which type of Intellectual Property protection I need? You most likely need a patent (that’s why you’re here!) but before submitting a patent application, make sure you need a patent instead of some other form of IP protection, like trademarks, service marks, and copyrights. 

Have I conducted a patent search? A patent search can help you determine if your invention can be patented or if it already exists. Through this process, you will also be able to visualize the market and strategize your own patent application. 

Do I know which type of patent I need? There are three different types of patents; utility, design, and plant. Utility patents are granted to inventions that are new or improved products or processes – they are often referred to as “a patent for invention” and need to have some form of novelty. Design patents, on the other hand, grant protection for the visual qualities of an item. It’s important to note that you can apply for both utility and design patents for the same product, since they protect different areas of IP. Finally, a plant patent could be granted to anyone who invents a new variety of a plant – just like it sounds!


Determine if you want to file with an agent or attorney


Once you’ve completed those tasks, you’ll want to figure out how to proceed with the patent application process. Determining if you want to go it alone or hire a patent agent or attorney will be a personal decision for you – there is no right or wrong answer. Inventors are not required to have agents and/or attorneys prosecute patent applications with the USPTO. With that said, the application process can be complex and the USPTO recommends using legal assistance. 

A patent agent is not an attorney, but they are certified to prepare and register patent applications. A patent attorney is an attorney who is USPTO-licensed to prepare and register patent applications as well as provide legal advice and tasks. Inventors generally hire agents or attorneys because the patent application process is complex and requires a great deal of research. This can be a costly option, however, which is why many inventors choose to complete the process solo. With that said, if you are an inventor or a small business who has limited resources, you may be eligible to receive pro bono attorney representation

If you decide to do it yourself, you’ll need to prepare to spend a considerable amount of time researching, reading, writing, and managing this complex project. You can check out the USPTO’s Pro Se Assistance Program for help and guidance if you’re going through the process independently. 


Prepare to apply 


Once you’ve determined whether or not to use professional legal services, you can get to the actual application! First, let’s mentally prepare. 

A patent application will be subject to a basic fee and additional fees, such as a search fee, examination fee, and issue fee. You may also be subject to excess claims fees, depending on the application. These fees vary depending on your type of patent application, so it’s best to speak with your attorney or consult the USPTO fee schedule

You’re also probably wondering how long it will take to complete this application and hear back from the USPTO. If you’re doing the application by yourself, you can expect to spend a couple hundred hours on one application. If you’re working with an agent or attorney, you’ll probably need to wait at least 2-4 weeks. If you want to know how long it will take for a first office action on your patent application, you can do so here

If you are applying for a Utility or Plant patent, you can submit either a provisional or nonprovisional application. Provisional patents tend to be easier, faster, and less expensive than nonprovisional applications, which you would need to file at a later date. 


Submit initial application


And now for the moment you’ve all been waiting for. After hundreds of hours working on this idea, it’s time to apply. In order to properly submit your initial application, you’ll need to include the following:

Once you have that ready to go, you can submit your application online. Once you sign your patent application and it’s been filed with the USPTO, you will not be able to change anything. Also, if you have worked with legal representation, the USPTO will only communicate with that attorney or agent. 


If your application is incomplete…


Don’t sweat it! This happens to the best of inventors. If this is the case, you’ll be notified of what is missing from the USPTO and their deadline to submit the completed application. Once your application is recognized as complete, your examiner will work on approving or rejecting it. 

If your application is rejected, you may appeal through the Patent Trial and Appeal Board



If your application has been approved…


Congratulations! Your hard work paid off. If the examiner decides that your application meets all requirements, you will then get a Notice of Allowance, which will list the issue and publication fees that you’ll have to pay prior to the official issuance of your patent. Your patent grant will be mailed to you on the issue date, with a gold seal and red ribbon!


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