Small Business
Jun 7, 2024

How To Patent An Idea: 12 Best Steps For Securing A Patent

As an entrepreneur looking to grow and protect your business, it’s crucial to think of ways to stay ahead of the competition.

This is especially true if you’re introducing a new idea or product to the market.

That’s where a patent can come in handy.

By patenting your idea or concept, you get control over its use and production.

If you’re like most innovators out there, you’re probably wondering how to patent an idea and protect your million-dollar investment.

But how do you get started?

In this article, we explain all the steps required to patent an idea and safeguard your invention.

What Is a Patent?

A patent is a certification declaring ownership of a particular invention. As a patent holder, you’ll receive exclusive rights to your invention for a period of no more than 20 years.

A patent gives you a monopoly over the production, use, and sale of your invention, effectively preventing others from producing or selling your idea or product without prior permission.

In the US, patents are issued by the United States Patent and Trademark Office (USPTO).

The USPTO asserts that its role isn’t to grant permission to make, use, or sell a product but instead to prevent competitors from making, using, or selling the invention without a holder’s consent.

What Are the Different Types of Patents

Below is a brief explanation of the three types of patents recognized by the USPTO.

Utility Patent

Utility patents protect individuals who discover or invent new and useful processes.

The patent lasts for 20 years and extends to the discovery or improvement of machines, composition of matter, and articles of manufacture.

Design Patents

Design patents are granted to individuals who invent new and original designs for articles of manufacture.

Unlike a utility patent that focuses on processes and materials, a design patent protects an individual’s ornamental design for 15 years.

If approved, a design patent offers protection for an article’s appearance and not operational or functional features.

Plant Patents

US federal law also allows people to seek patents for discovering or inventing new plant varieties through asexual reproduction.

A plant patent incorporates hybrids, seedlings, and mutants.

How to Patent an Idea: Steps Required

Patenting an idea isn’t as straightforward as most people perceive. It requires a number of steps, as explained in this section.

Step 1: Determine the Type of Protection You Need

The first step in your patent application journey is determining the type of protection your business idea needs.

Intellectual property protections usually vary from patents to trademarks, copyrights, trade secrets, and even a combination of these, as explained below.

Patents

Protections given to inventors of mechanical processes, designs, or technical innovations.

These may include items like pharmaceutical drugs, new machines, or unique designs.

It prevents other parties from copying, using, selling, or making the invention without prior consent.

Trademark

A protection issued for a unique word, design, or phrase (or a combination) that distinguishes your product or services from others.

It prevents competitors from registering or using similar trademarks to yours.

Copyright

Protection designed for intellectual property like music, novels, software code, paintings, and even movies that are original.

These items must exist in tangible mediums like film, paper, canvas, or different types of digital formats.

A copyright protects a holder’s right to distribute, reproduce, display, or perform the created work.

It’s worth noting that while the USPTO is responsible for granting patents and registering trademarks, copyrights are registered by the U.S. Copyright Office at the Library of Congress.

Step 2: Determine Whether Your Invention Is Eligible for a Patent

Not every ‘idea’ is patentable, meaning you must do your homework to determine if your unique concept is eligible for protection.

While you can patent a process, machine, composition of matter, and an article of manufacture, you can’t do the same for physical phenomena, abstract ideas, and laws of nature.

A patentable idea or invention must meet the following criteria:

  • Novel: Your invention must be new to be considered for a patent. USPTO also holds that an invention mustn’t resemble a formerly used or known concept to qualify as novel.
  • Nonobvious: USPTO requires that all novel ideas be nonobvious, meaning it shouldn’t be an obvious solution to someone with average skill. It should have an inventive step and require a high degree of skill and knowledge to implement.
  • Useful: An idea won’t qualify for patent protection if it isn’t deemed useful. It must address a challenge and serve a functional purpose for the USPTO to consider it patentable.
  • Qualify as a Patentable Subject Matter: Your idea must meet USPTO’s criteria for patentable ideas or products. It should also be well described such that an individual of ordinary skill can make and use the concept or invention.

Step 3: Conduct a Search to Confirm Your Invention Isn’t Publicly Disclosed

It’s vital to conduct a patent search of all public disclosures to determine if your invention or business idea qualifies as novel.

USPTO recommends contacting your nearest Patent and Trademark Resource Center (PTRC) to get assistance from search experts.

A patent attorney or registered agent can also come in handy when making thorough design or utility patent searches.

Below are some  useful tips provided by the USPTO to help you make a thorough patent search:

  • Brainstorm potential terms that describe your inventions, like synonyms
  • Us USPTO’s Patent Public Search to conduct keyword searches
  • Conduct a deep assessment of the documents retrieved in your search
  • Use USPTO’s Classification Resources Page to expand your search
  • Review the cited references
  • Broaden your search by checking Espacenet to access its database (140 million+ publications)

Step 4: Determine the Type of Patent Your Invention Requires

After completing the search and determining that your idea or invention has not been registered elsewhere, next is to select the type of patent you’re applying for.

The most common type of application is the utility patent, which can be granted to people who invent (or improve) processes, machines, composition of matter, or an article of manufacture.

Other patent types you can choose from include design patents and plant patents.

Step 5: Decide Whether To Hire a Patent Attorney or File Your Application

A good understanding of USPTO proceedings and patent law is required when making a patent application.

While a solo or ‘’pro se’’ application can work, outsourcing to a patent attorney or a registered business agent can come in handy, especially if you’re new to the patent process.

A patent attorney or agent will guide you on matters regarding payment and all required procedures in the patent process of your business idea or invention.

Step 6: Create a USPTO.gov Account

Although filing a patent application is complex to some extent, the USPTO has several tools like the Pro Se Assistance Program (for solo applicants) and Patent Application Guides that streamline the application process.  

It is highly advisable to create a USPTO.gov account to make the most of USPTO’s systems.

Creating an account allows you to electronically save your submission materials.

You can also file the required follow-on materials online using your account.

While filing a patent application is possible without creating a USPTO.gov account, you won’t benefit from the tools that allow you to track and view the progress of your submission.

Step 7: Prepare and Submit Your Patent Application

When preparing to patent an idea, it’s crucial to decide whether to make a provisional patent application or a nonprovisional one.

A provisional application is an easier, faster, and pocket-friendlier alternative to a nonprovisional application.

Although a provisional patent application doesn’t require any examination from a patent examiner, it has a 12-month limit where applicants must file a nonprovisional application lest it becomes null and void.

Disclaimer, you cannot file a provisional application for design inventions.

A nonprovisional application must be reviewed by a patent examiner before being approved if all requirements are met.

You can file a nonprovisional application to claim the benefit of a provisional application’s filing date before the 12-month limit expires.

Step 8: Submit Your Patent Application

Once done with all the required documentation, you should be ready to submit your application.

USPTO allows users to submit their patent applications online through their USPTO.gov accounts.

The USPTO has several resources to assist you in your applications, from basic tutorials to tips on navigating the systems and indexing guides.

Step 9: Pre-Prosecution

Your application will be reviewed for completeness and formalities once received by the USPTO.

In case of any informalities, you’ll receive a notice indicating what’s required to complete the application.

If your application contains no errors, it will be forwarded to a patent examiner for further review.

Step 10: Wait for the Application Prosecution Stage

After the pre-prosecution stage, you’ll have to allow USPTO enough time to review your application.

Patent applications are reviewed on a departmental basis, with each invention designated to a relevant technology center (TC).

The assigned examiner will review your application’s content to determine if all the requirements for approval are met.

The examination entails a review for compliance with relevant legal requirements, a thorough search through US patents, foreign patent documentation, available literature, and publications of patent applications.

This will help determine whether your invention meets the rules of practice, is novel, non-obvious, and useful.

Once the patent examination process is complete, you’ll receive a notification in writing (Office Action), which will be sent to your patent attorney or mailed directly to you (in case you have no representation).

The Office Action is usually detailed and explains the reasons for approval or denial.

In case you want to appeal against a negative Office Action, you’ll be required to do so without delay, lest you risk additional fees or abandonment of the application.

Step 11: Receive Your Patent

If, upon examining your application, the examiner determines that you’re eligible for a patent, you’ll receive a Notice of Allowance.

The notice means your application was successful and will be sent to your patent lawyer or directly if you applied individually.

But for your patent to be issued, you’ll need to pay the issue fee and publication fee (if necessary), which are usually indicated on the Notice of Allowance.

You must pay the fees within 3 months of receiving the notification lest your application becomes abandoned.

It’s worth noting that the 3-month period to pay the issue fee is non-extendable.

Step 12: Maintain Your Patent’s Legal Protection

Your patent application doesn’t end with a confirmation.

To remain protected, you’ll need to pay maintenance fees, which vary depending on the type of patent.  

Utility patents attract maintenance fees that are due 3.5, 7.5, and 11.5 years after patent approval and grant.

The mentioned fees won’t attract any additional charges if paid within the 6 months preceding the due dates.

You can still pay your maintenance fees six months after the expiry date but with a surcharge.

Failure to pay your due maintenance fees on time may lead to patent expiration and loss of accompanying rights.

It’s vital to note that the USPTO doesn’t issue notices of maintenance fee due dates.

But it may send a reminder in case you don’t pay on time to notify you of the incurred penalty and grace period.

But if you don’t pay on time, the patent will expire on the exact date your grace period ends.

Be sure to check your USPTO.gov account to confirm your fee schedules and consequently avoid any inconveniences.

It’s advisable to consider these fees as part and parcel of running your business to avoid payment delays in the future.

Checklist for Patent Application

A patent application requires the submission of several documents that comply with US laws and guidelines regarding patents.

Here are some of the crucial elements required when assembling your patent application.

Specification

The specification is a crucial section in your patent application that describes your invention and how it is used or made.

The USPTO holds that the specification documents must be written clearly, concisely, and in the exact terms that people who are knowledgeable in the same field will comprehend the invention.

Below are some of the key elements of your invention’s specification:

  • Title: Your title should describe the invention in two to seven words (no more than 500 characters) without mentioning the proposed brand name.  
  • Cross-Reference to Prior Applications: You can identify an earlier-filed provisional application if you claim its benefit. But you must also include the claim in the Application Data Sheet  (ADS) for the USPTO to recognize it.
  • Background of the Invention: This document will help provide context for your invention. It should contain information such as references to other documents that relate to the invention.
  • Summary of the Invention: The brief summary should explain the general idea behind the discovery and its usefulness in a particular area. This is where you market the business idea by stating the advantages and how it solves problems stated in the background.

Drawings

Most patent applications contain drawings to better explain the subject matter.

The drawings should show every unique feature as specified in your claim.

You cannot introduce a drawing into your application after filing the application, as new matter is prohibited once the process commences.

Oath or Declaration

You must make a declaration or oath that you are the original inventor.

You must also acknowledge the awareness that false information is punishable by fine, imprisonment, or both.

Application Data Sheet

The application data sheet contains bibliographic data such as inventor information, correspondence address, domestic benefit, and foreign priority.

You can also use the document to prohibit the publishing of your application.

Although not mandatory, the application data sheet must be filled out if you plan to claim the benefit of a prior-filed nonprovisional or provisional application.

FAQs About Patenting an Idea

How Long Does Patent Protection Last?

The duration of a potent protection depends on the type of patent. Utility and plant patents last for 20 years from the date of application, while design patents last for 15 years from the date the patent is granted.

Can a Patent Expire Before Its Due Date?

A utility or design patent can expire before its due date if maintenance fees aren’t paid by the last day of the grace period (6 months after the deadline). A plant patent doesn’t require patent fees.

Can I Patent My Idea Alone?

You can patent your idea without the assistance of a patent lawyer or agent if you’re looking to cut costs.

USPTO provides tools to guide solo applicants on how to navigate the system and have a streamlined patent filing process.

Can I Dispute a Failed Patent Application?

You can dispute a failed patent application by responding to the Office Action issued by the examiner.

There’s usually a window to respond and counter the findings, but you’ll need to act fast before the application is withdrawn.

What Conditions Are Required for an Idea To Be Patented?

For an idea to be patented, it must be new and not obvious. It must also have value and address a challenge.

The inventor must also provide a clear and detailed description of how the invention is made and used.

Is a Filing Fee Refundable?

A filing fee is non-refundable whether or not your patent is granted, as it covers examination costs. You will need to pay an issue fee if the application is approved.

Wrapping Up

Patenting an idea is an excellent way to protect your innovation. However, the process can prove overwhelming, especially if you have no prior experience.

Outsourcing the application and follow-up work to a patent lawyer or agent is highly recommended, but you can also do the patenting on your own using USPTO tools and guidelines.

Before you kickstart the patenting process, be sure to confirm that you need a patent and not copyright or trademark protection.

It’s also advisable to confirm whether or not your invention meets the bare minimum of a patentable product or idea before conducting a detailed search.

If granted a patent, remember to keep track of your maintenance fees to avoid premature expiry.