How to Patent an Idea

Do you have a brilliant idea you're ready to patent? Getting a US patent prevents others from making, using, offering for sale, or selling your idea within the United States, and prevents others from importing it into the US. After you determine that your idea meets the right criteria and hasn't already been patented, apply for a patent with the United States Patent and Trademark Office. Read on to learn more about how to patent your bright idea.

EditSteps

EditConducting Research

1. Understand what inventions or ideas are eligible for a patent.^[1][2] You can patent your idea if it's a process, a machine, an article of manufacture, a composition of matter, or an improvement of any of these. Abstract ideas, natural phenomenon, and inventions deemed not useful are ineligible for patents. To determine if your idea can be patented, review the USPTO’s (US Patent and Trademark Office) list of what can and cannot be patented. The list is located on the USPTO’s website (uspto.gov). Your idea should also be considered an invention, and its practical use should be apparent.^[3] Some examples of inventions that would or would not qualify for patents include:
   
   • Computer software. These can usually be described as a “process” or as a “machine." The software makes the computer follow steps to do something (a process). It also takes information from a device (the computer) and changes the information that it outputs (machine). To clarify, the "process" is not the same as computer code, which is subject to copyright but not patent.^[4]
   • You can also patent designs. For example, you could patent a new shape for a boat or plane, even if you haven't actually built it.
   • Finally, if you scientifically engineer a new substance or organism, your invention is eligible for a patent.
   • If your idea is an abstract theory that would be impossible to put into practice, you probably can't patent it.
   • Laws of nature and physical phenomena also cannot be patented.
2. Determine whether your idea is new, non-obvious and useful.^[5][6][7] These are the basic qualifications for patenting any type of invention. Before you start the process of patenting your idea, ask yourself whether it passes all three tests.
   
   • For the “new” qualification ask yourself if you have heard about the idea or something quite similar before. If so, the idea is probably not new, and you probably can't patent it. For example, you would not be able to patent a basic blender.
   • To determine if your invention meets the “non-obvious” qualification, determine if it is something that others could easily think of? For example, you may want to patent a process for building a sturdy structure. If architects and others with engineering knowledge could have independently thought of the same process, your idea isn't patentable.
   • Is your idea useful? A patentable idea must be one that can be put to practical use. As you consider this, you need to think about the target user. Is it for common consumers, manufacturers, or researchers? Is it obvious that one of those groups would consider your invention helpful in their lives or work? If so, your invention should be able to pass this test.
3. Determine whether you are eligible to file for a patent. If you are the inventor of the idea you wish to patent, you can apply for a patent. The law also allows for other people to apply for a patent under certain conditions.^[8]
   
   • If you are the inventor of the idea and have assigned the invention to another person, that person may apply for a patent.
   • If the inventor is deceased, the inventor's legal representatives -- e.g., administrator or executor of the estate -- may apply for a patent.
   • If you invented the idea with another person or persons, you may apply for a patent as joint inventors. A person who only contributed money to the idea cannot apply as a joint inventor.
   • If you work for the USPTO, you may not apply for a patent or acquire a patent other than by inheritance or bequest.
4. Conduct a patent search to ensure that your idea isn't already patented. Old ideas, whether previously patented or not, may not be patented. To check, you'll need to conduct a search of previous public disclosures (also called “prior art”). This includes previously patented inventions in the U.S., foreign patents, and printed publications. Here are a few resources for those conducting research on old patents:
   
   • Watch the USPTO’s patent search tutorial for a step-by-step slideshow on conducting a patent search (link below).^[9]
   • Review the University of Texas’ Guide to Patent Searching at the McKinney Engineering Library (link below).
   • Use the USPTO’s Search for Patents Research Page located on its website. The page provides links to searchable databases so an inventor may determine if his or her invention is new.^[10]
   • Visit a Patent and Trademark Resource Center (PTRC) for expert assistance with your search. For complete information on PTRCs and locations, visit the USPTO’s library list (link below).^[11]
5. Get legal help. Filing for a patent can be an extremely long and complex process. You may benefit from seeking help from a patent attorney. You can find a patent attorney through the USPTO website here.
   
   • Patent attorneys are highly specialized attorneys. In general, they not only have law degrees but also a technical and/or scientific background.^[12] To practice patent law, patent attorneys must pass not only a bar exam but an examination through the USPTO.^[13]
   • Due to their extensive and specialized background, patent attorneys can be quite expensive. You may be able to find a lower-cost attorney outside of large metro areas.^[14]
6. Investigate legal options for low income applicants. If you cannot afford a patent attorney, you have several options.
   
   • The USPTO has a pro se assistance program that offers assistance to inventors who can't afford a patent attorney. They offer in-person assistance to people who can meet with them in Alexandria, Virginia. They also offer advice via phone at 1-866-767-3848, or via email at independentinventor@uspto[dot]gov.^[15]
   • Pro Bono legal help is often available through law firms in your area. Some states have specialized patent programs for people with low incomes. You can find out more about the resources in your area at the USPTO website here.
   • You can also visit a legal clinic operated by a law school. Currently, 19 law schools in the US have clinical programs where law students (under supervision by faculty and professionals) help people navigate the patent process. You can find a list of participating schools here.

EditPreparing Your Patent Application

1. Determine what type of patent you need.^[16] Patents cover three basic varieties of invention. These include:
   
   • Design patents. A design patent protects an ornamental design for an article. A design consists of the visual elements of an item, for example, the shape of a vase and the material used to manufacture it.^[17]
   • Plant patents. A plant patent may be granted when a developer invents or discovers and asexually reproduces any distinct and new variety of plant.^[18]
   • Utility patents. A utility patent protects inventions, including novel processes, machines, articles of manufacture, or compositions of matter. A patent on a new hand tool, kitchen appliance, or engine for example, would be a utility patent. Quite simply, nearly everything that does not fit the other categories requires a utility patent. Over the last several years, 90% of the patents issued in the US were utility patents.^[19]
2. File a US provisional patent. Not everyone who applies for a patent obtains the provisional first. However, holding a provisional patent allows you to be the first to stake your claim to the invention. A U.S. provisional patent allows an inventor to file for protection of his or her invention, without a formal patent claim, oath or declaration, or any information disclosure (prior art) statement. A provisional patent provides the means to establish an early effective filing date in a later filed non-provisional patent application. It also allows the term “Patent Pending” to be applied in connection with the description of the invention. A provisional patent is good for 12 months, and the inventor must file for a non-provisional patent within those 12 months.^[20]
   
3. File a US non-provisional patent.^[21] A U.S. non-provisional (or formal) patent is a standard patent which protects an invention within the U.S. for 14 – 20 years, depending upon the type of patent and when it was filed. The process is lengthy; it typically takes between one and three years to receive a formal patent. In order to receive a patent, the application must contain words and drawings that clearly:
   
   • Demonstrate how to make and use the invention.
   • Explain why the invention is different from all other inventions (the prior art).
   • Precisely describe what aspects of the invention should be patented.

EditApplying for a Patent

1. Register for electronic filing. Before filing an electronic application, an inventor must register to obtain a customer number and a digital certificate.To obtain a customer number and digital certificate, complete the following steps:
   
   • Complete the Customer Number Request Form on the USPTO website (link below).^[22] Then 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.
   • The digital certificate ensures that your application data is secure. To obtain a digital certificate, you must read the subscriber agreement located on the USPTO’s website (link below).^[23]Then fill out a Certificate Action Form (link below).^[24] Mail the completed form to Mail Stop EBC Customer Number, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. ^[25]
2. Prepare the specification attachment.^[26] The specification is referred to as the “narrative” portion of the application. It should include descriptions of the type of invention, any relevant prior art (if your patent is an improvement on the prior art), the purpose of the invention, the invention itself (how it is constructed and what it is made of), and the operation of the invention (how it works). The “claim” is typically the most difficult part of the patent application to compete.^[27] It must follow these strict requirements:
   
   • All claims are sentence fragments. They start with one capital letter, contain one period and no quotation marks or parentheses.
   • A statement of the independent claim. This is a broader description of the item in question.^[28]
   • The dependent claims follow the independent claim. They are just further descriptive remarks, broken down into single components of the item.
   • For example, an “independent” claim for a ziplock bag could be "Claim 1: A bag closure of the type comprising a flat body of material having a lead-in notch on one edge thereof, and a gripping aperture adjacent to and communicating with said notch." The “dependent” claim to go along with the above independent claim could be: “The closure of claim 1 wherein said body of material of the bag is composed of polyethylene terephthalate”.
3. Prepare any necessary drawings.^[29] Almost all patent applications require drawings of the invention. The drawings are visual representations of the invention and must show every feature that is recited in the “claims.” If you are not skilled at drawing, you may hire a patent drafts person to prepare the drawings. Typically they charge a fee of around $75 to $150 per drawing sheet.
   
   • To find a draftsman in your area, conduct an online search. Many engaged in drafting specialize in this kind of work. Most who do will list themselves as a patent draftsman or draftsperson, so they should not be hard to find.
   • There are strict requirements for patent drawings as to the materials, size, form, symbols that can be used, and sharing. For exact requirements, including size of the paper, margins, color, font, etc. see the USPTO’s drawing information (link below).^[30]
4. Include the oath. An inventor must make an oath or declaration that he or she believes himself or herself to be the originator of the invention. The oath must be signed by the inventor before a notary public or other officer authorized to administer oaths.
   
   • The “oath” for utility patents is found on the USPTO’s website (link below).^[31]
   • For a design patent, download and fill out the form linked to below.^[32]
   • A form for plant patent declarations is also a separate form, available from a link at the bottom of this page.^[33]
5. Check the formatting of your application attachments. All attachments to a patent application must be in pdf format and be formatted to follow specific guidelines. You may review the USPTO’s pdf guidelines on the USPTO website.^[34]
   
6. Wait for your authorization code and reference number. These two numbers will be provided to you after your Certificate Action Form has been processed. The Authorization Code will be e-mailed to you and the Reference Number sent by U.S. mail. The USPTO may also attempt to contact you by telephone in order to provide you with your Reference Number.
   
7. Fill out the patent application using the USPTO’s electronic filing system (EFS). The system uses a web-based form interface, to which most users should be accustomed. To fill out the application follow these steps:
   
   • Log on to the EFS (link below).^[35] Do this by uploading your digital certificate and entering the password you were assigned when applying for the certificate. You can upload your certificate by clicking the ‘browse’ button and browsing to the location on your computer where the certificate is saved.
   • Fill in the bibliographic data requested. Bibliographic data includes the name of your invention, your name and address, and your customer number.
   • Attach your prepared pdf documents by clicking the ‘browse’ button and browsing to the location on your computer where the documents are saved. Enter the category and description for each document you attach.
   • Fill in the bibliographic data requested. Bibliographic data includes the name of your invention, your name and address, and your customer number.
   • Calculate your filing fee by checking the appropriate boxes on the onscreen calculation tool. The tool will display your fee in the upper right corner. The current fee schedule can be found on the USPTO’s website.
   • Review and submit your application. Be sure to review each attached document, as well as the actual application form, very carefully.
   • Choose whether to pay now or later. If you decide to pay now, you may pay by credit card, USPTO deposit account, or electronic funds transfer (EFT). If you chose to pay later, you will need to pay by midnight Eastern Standard Time (EST) on the day of filing in order to avoid additional fees.
8. Wait for your application to be approved or rejected. Your paperwork will be considered and the USPTO will determine whether your idea is eligible for a patent. If your patent is approved, you'll need to pay a fee before it is granted.
   
   • If your application is rejected, you can appeal the decision or make amendments to your application materials and submit them again.
   • If your idea isn't patentable, you may still have options for legally protecting it. Consider whether having it trademarked, copyrighted, or declared a trade secret might be a better option.

EditAvoiding Patent Promoter Scams

1. Visit the Federal Trade Commission website. If you are considering working with an invention promotion firm to help develop and evaluate your invention and apply for your patent, visit the FTC website first.^[36]
   
   • Conduct a search on the FTC website for the word "invention." This will bring up any companies who have been investigated and/or penalized by the FTC for invention-related wrongdoing.^[37]
2. Check with the Better Business Bureau. Once you have checked with the FTC, investigate your potential promotion firm on the BBB's website.^[38] The BBB maintains consumer complaints and records of legal actions taken against companies.
   
3. Consult your patent attorney. If you have hired a patent attorney, ask him/her about the promotion firm you're considering. Your attorney may know about their reputation and can counsel you about making a decision.
   
4. Know your rights. If you decide to hire an invention promotion firm, you should be aware that they are legally obligated to disclose certain information to you about their past business before you sign a contract.^[39] A full list of the conditions with explanations is available on the USPTO website here, but it includes:
   
   • The number of inventions the promoter has evaluated in the past 5 years, and how many received positive and negative evaluations
   • The number of customers who have contracted with the promoter in the last 5 years
   • The total number of customers who are known to have received a profit because of the promoter's services
   • The total number of customers who are known to have received license agreements for their inventions because of the promoter's services
   • The names and addresses of all the previous invention promotion companies that the promoter and its officers have been affiliated with for the past 10 years

EditTips

• There is a slideshow tutorial that provides complete step-by-step instructions for filing a patent application. It can be found at http://ift.tt/21pWjWw.^[40]
• Before filling out your patent application, you may chose to practice using the EFS through the USPTO’s simulated application for unregistered users.^[41]
• You may contact the USPTO’s Inventors Assistance Center by telephone at 800-PTO-9199 or visit the center online.^[42]. This may help when filing out patent application forms or for answers to general patent questions.
• Record everything concerning your invention including what inspired you to do it, why you made the product, how you did it and how long it took. In addition to this, record diagrams of the original product and any later modifications. Where necessary, include dates and have your signature and two others on each entry. All of this information helps to prove the originality of your invention and make the patent application process successful. You can even build a prototype to increase your chances of success.

EditRelated wikiHows

• Name a Patent
• Patent an Invention
• Protect Your Ideas Without a Patent
• Do a US Patent Search

EditSources and Citations

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source How to of the Day http://ift.tt/1oG4n3B