How to Get a Patent
Every family has the story of “the invention that got away” — in my family, that story tells how crazy Uncle Tom worked twenty hours a week in his basement workshop and came up with a device that could measure the speed of a passing baseball. Everyone in the family ridiculed him, Tom never sought a patent, and ten years later (in 1954) the patent for the radar gun was awarded to a guy who has to be just filthy rich by now. Whether or not this story is true is not the point. There are examples throughout history of inventors whose names fell by the wayside — who remembers that Mahlon Loomis was the first person to demonstrate wireless communication in 1862? We all know the name Guglielmo Marconi, “inventor” of the radio.
These cautionary tales exist for a reason — the lesson is, patent your inventions properly or you’ll end up like Mahlon Loomis. If you have an invention, a design idea, or even a scientific idea that you feel is unique and worthwhile, it is time to secure a patent.
What is a patent?
Don’t get a “patent” confused with a “trademark” or a “copyright”. A patent is similar to these two things, but a patent has a specific meaning. A patent for an invention means the US government grants the property rights of an invention to the inventor who seeks a patent. Patents are issued by the Patent and Trademark Office.
New patents last for twenty years from the date on which the application for the patent was filed in the United States. Patents are not issued until certain fees are paid. What types of rights do patents grant? According to Federal law, a patent grants “the right to exclude others from making, using, offering for sale, or selling” your patented invention in the United States or importing their version of your invention into the United States. According to that language, a patent is not the right to make or sell your invention, but the right to keep other people from making, selling, or importing that invention.
How much does it cost to get a patent?
There’s no easy answer to this question. Every patent process is a little bit different, and depending on how you file your patent, the price could change dramatically.
A patent is not terribly expensive, especially for people who plan to market their invention and make big money on it. Here’s a breakdown of the fees associated with filing a patent.
USPTO filing fee: $165
USPTO patent search fee: $270
USPTO examination fee: $110
Grand total paid to USPTO — $545
If you are successful with your patent application (if the USPTO Patent Examiner says that you have an allowable application) you’ll need to pay an additional $755 fee to the USPTO to have your patent issued.
In total, the fees paid to the USPTO would be $1,300 for a successful patent application.
But there are other fees you’ll need to pay in some cases. For instance, if you plan to hire a patent attorney to draw up and present your patent to the government, that lawyer’s fees will be somewhere in the $10,000 – $20,000 range. Preparing and filing your patent yourself can instantly save you those fees, but there are good reasons to hire a patent attorney if you don’t feel comfortable filing on your own.
Getting a Patent
1. In some cases, you’ll first need to prepare a professional drawing of your invention.
2. Now it is time to conduct what is called a “patent search”. Most people will hire a professional patent agent or patent attorney to perform this task, but you can pay the USPTO directly and perform the search yourself and save money in the process.
3. If you’re going to hire a patent attorney, now is the time to do it. A patent attorney will represent you in front of the U.S. Patent and Trademark Office. Yes, this is expensive, but patent law is notoriously complicated, and hiring a patent attorney to save you time and trouble could be an investment in the future of your invention.
4. Read and review the PTO website for instructions and fee schedules. There are a million special rules that govern patents — but in a nutshell, you need to know that there are three basic types of patents.
-Utility patents involve any “new and useful process, machine, article of manufacture, or composition of matter or any new and useful improvement thereof”
-Design patents are “new, original, and ornamental” designs for a product
-Plant patents are what they sound like — patents for new, asexually reproduced “distinct . . . varieties of plant.”
I’m not sure what that “plant patent” thing is all about, but the point is you have to classify your invention along lines like this throughout the PTO patent process.
5. Once you’ve got all the paperwork prepared, either by yourself or your lawyer, it is time to actually “apply” for a patent. You’ll file an appropriate application and pay the application fees required by the PTO. Here’s what the PTO says about a good patent application — “A patent application should include a written document which comprises a specification (description and claims), and an oath or declaration, a drawing in those cases in which a drawing is necessary and filing, search, and examination fees.” This is the basic format of the document your patent attorney can put together for you. You may also need to hire a design firm or prepare a design yourself — in some cases, the PTO will required that you present a working model of your invention.
6. After you’ve filed for a patent, you can start using the term “patent pending” when you talk about your product or invention. This is a real world way of letting people know that your device is recognized by the US government as your own, and it could help you fight a legal battle later if someone tries to break your patent. As long as your patent is still in the pending stage, the only official language you can use is to say “Patent Pending” on the packaging.
7. Unfortunately, the end of the patent acquisition process is a waiting game. The PTO has been known to take years approving a patent, which is why it can be important to properly use the phrase “patent pending” in connection with your invention or product. The “average time” for a patent application from filing to approval is around eight years. As one famous inventor said, “You can get old” waiting on the patent office to come through.
Properly patenting your invention, product, or new idea is crucial if you plan on making money off that item. Without a patent, counterfeiting and plain old theft can get between you and the profits from your great new invention. Don’t be the crazy Uncle Tom of your family — gather a little cash and file for your patent before you lose your chance.