How to Get a Patent for Your Invention
If you have a great idea for a new product, here's what you need to know about patents
Gwen Moran is a small business authority and author of The Complete Idiot’s Guide to Business Plans.
Brand X Pictures | Thinkstock
- Dr. Robert Jarvik, 66, invented the Jarvik 7 artificial heart after his father needed heart surgery.
- Sir Tim Berners-Lee, 57, created the software language needed to create a Web page and developed the first Internet browser, effectively allowing you to read the Next Avenue site.
- Gail K. Naughton, Ph.D., 55, perfected the science behind synthetic skin, a method of treating burn victims.
(MORE: How to Market Your Small Business)
Whether that idea is the next breakthrough medical invention or a better device to cook pasta, one of the best ways to stake your claim and protect it from being stolen by competitors is to get a patent. Recent federal legislation changed America’s archaic patent laws, so I thought you’d want to know how to navigate the somewhat byzantine approval process.
Last September, Congress passed the Leahy-Smith America Invents Act, which most notably makes the United States a “first to file” country instead of a “first to invent” nation. Translation: In the past, if you were granted a patent by the U.S. Patent and Trademark Office, the agency could revoke it if someone else could prove he or she invented the concept earlier, regardless of whether a patent had been filed. With that loophole closed, the patent process is more straightforward. (It's also harder to challenge a patent.)
A Patent Is ...
A patent is a right granted to you by the U.S. government (typically for 20 years from your application date) to manufacture, sell, use or allow others to make or market your invention throughout the country, while excluding competitors from importing the same product to the United States.
Patenting your invention can be a complicated, expensive process, especially for first-timers. The government’s patent filing fee alone ranges from $125 to $825. If your application is approved, you must then pay about $870 to secure the patent and you’ll owe a “maintenance” fee every few years that ranges from $565 to $2,365.
Three Key Questions
Before you file for a patent, answer these three questions to save yourself time, money and effort:
1. Can my invention be patented? Just because you have an idea, that doesn’t mean it can be protected by a patent. Forgive the following government jargon, but this is how it works: The Patent Office grants utility patents to “new, non-obvious and useful” processes, machines, articles of manufacture, composition of matter, and improvements on any of these innovations. Design patents are for ornamental designs of manufactured products.
Heres what you cannot patent: laws of nature, physical phenomena (like the discovery that hot water freezes faster than cold), artistic works (including literature, music and fine arts), abstract ideas and inventions the Patent Office deems not useful or morally offensive.
2. Is filing for a patent worthwhile? Assuming your idea is new and unique, you need to determine whether the market is viable enough to warrant the time and expense of filing a patent application.
As a rule, your invention has greater potential if its market is large and well-defined. The Dummies.com website has an excellent piece on how to size up your market. (I'll cover this topic in further detail on Next Avenue in the coming weeks.)
A patent might not be necessary if you’re planning on licensing your invention to another company, says Ronald L. Docie Sr., author of The Inventor’s Bible: How to Market and License Your Brilliant Ideas. In that case, Docie recommends looking for reputable companies with a successful track record of working with inventors — they’re unlikely to pilfer ideas.
3. Is my invention already on the market? To find out, start by checking retailers and wholesalers. Search online, too, using keywords that relate to your idea.
Don’t assume that a patent is available just because you haven’t seen a similar invention. Many patents never make it to market. It’s possible that you can be granted a patent if your product has significant differences from an existing patent, though.
To determine whether anyone else has already laid claim to an invention like yours, you can hire a patent attorney or registered patent agent to conduct a patent search. (A list of these professionals is available on the Patent Office’s website.)
Agents have passed Patent Office exams and can help you prepare the necessary application paperwork, often at a lower fee than attorneys. But they can’t provide legal advice. A patent attorney or agent can also tell you which of the five types of patent filings, if any, is right for you.
Where to Get More Help
If you decide to pursue a patent, I strongly encourage you to check out the Patent Office website. It has a number of useful tools, including an Inventor Resource page with a tutorial about how to protect yourself before and during the application process.
That, of course, is a great idea — just like your invention.