Applying for a Patent

A Beginner’s Guide to Help You Patent Your Invention 

 

Who should be reading this?

This document is catered towards individuals who have never obtained a patent, and also for those who may just need a refresher on the topic.  The entire process of obtaining a patent (i.e. patent prosecution) can be very complicated and cumbersome, but instead of confusing you with the details and legalese, this guide will focus on covering the core basic of what you need to know. 

Overview

By now, you probably have an invention in mind, and you’re wondering if you should try to obtain a patent.  Yet, you’ve never dealt with patents, and don’t know where to begin.  This guide will help you get off on the right start by walking you through the following questions:

  • Is your invention patentable?
  • Should you file for a patent?
  • How do you write a patent application?
  • How do you file a patent application?

Is your invention patentable?

Generally, your invention is patentable if the following three conditions are true:

1.      Your invention is useful.

2.      Your invention is novel.

3.      Your invention is unobvious.

You generally shouldn’t have any problems getting past the first condition of usefulness.  Presumably, your invention will be useful to someone. 

In order for your patent to be novel, it must be demonstrably different from what is publicly known today (i.e. prior art).  You cannot obtain a patent on something that already exists in the public domain today.  Not every aspect of your invention has to be different from what exists already.  For example, if your invention involves parts X, Y, and Z, and you find a product in the marketplace that involves the parts X, Y, and W, your invention will be considered novel against that product, even though they are similar.  Let’s look at an example where you invention would not be patentable, because it wasn’t novel.  If you found a magazine written in 2004 which details your invention, then your invention would no longer be patentable.  Why?  Because your invention is no longer novel.  It was already known by the public through the 2004 publication in the magazine.  (There are situations where you can pass the novelty condition, even if your invention is publicly known.  This situation arises because of the “first to invent” system within the USA.  However, this guide will not cover this situation.)

The third condition states that your invention should be unobvious.  This is the most subjective and usually the most difficult condition to pass.  This condition checks to see if it would be obvious for a person skilled in the art (i.e., someone who works within the profession) to combine two publicly known ideas together to come up with your invention.  If so, then your invention is considered obvious.  Let’s look at an example. Imagine your invention is a windshield wiper made of a special rubber that glides better over glass.  Both the windshield wiper and the special rubber are already known by the public domain, however, nobody has ever created your invention of putting the two together.  The USPTO may declare your patent obvious to someone skilled in the art and thus not patentable.  However, you could certainly come up with many rebuttals, one being that if it was so obvious, how come no one else has done it yet.

Should you file for a patent?

First, you should try to make as certain as possible that your invention is patentable based on the conditions above.  To make sure you meet the conditions of being novel and unobvious, a prior art search will need to be performed.  In a prior art search, a search is conducted to find any publications that may affect the patentability of your invention.  Once a thorough search has been performed, it will be up to you to judge how novel and unobvious your invention actually is. 

Now, you have to decide how much time, effort, and money you’re willing to spend.  Realistically, you will want the assistance of a patent agent or attorney to help you finalize and file the patent application.  If you are willing to commit the time and effort, you should be able to draft most of the patent application on your own, thus saving you a significantly amount of money.  There are parts of the patent application that will be best left in the hands of a patent agent/attorney.  We will cover this next.  Ultimately, you should expect to pay anywhere from $2,000 to $20,000 to a patent agent/attorney, based on how much work you need fulfilled. 

The sooner your file, the sooner you will establish a filing date.  Once your patent application has been filed, you will no longer need to worry about any future publications, products, etc. in the public domain affecting the patentability of your invention. 

If you have faith in your invention, find it to be patentable, and are willing to commit some time and money, then you should certainly file for a patent.  If/when your invention gets granted as a patent, this decision may turn out to be the most important one you make in your life. 

How do you write a patent application?

First, let’s cover some terminology.  When you first have an idea, we refer to it as your invention.  When you put the invention on paper for your personal records, it is known as a disclosure.  To file for a patent, you put together what is known as a patent application.  A patent application is comprised of a few parts, and this is what is submitted to the USPTO.  Once the patent application is submitted to the USPTO, your invention will have an official status of “patent pending.”  If/when the patent application is approved, your invention will have the official status of being “patented.”   

Now, getting back to the topic, let’s take a look at the parts of a patent application.  A patent application is comprised of:

  • The specifications
  • The claims
  • The abstract
  • The drawings

The best way to understand the different parts of a patent application is by reading a few good patents.  I’ve provided links to a couple of popular patents below:

Amazon 1-click Patent

You can have a patent agent/attorney write everything for you, or, if you are trying to save money, you should be able to write the specifications, write the abstract, and do the drawings.  At a minimum, it is recommended that you hire a patent agent/attorney to perform the following:

  • Read and check your specifications
  • Write your claims
  • Check your drawings
  • File any paperwork required to submit the patent application to the USPTO


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