Skip to content

How Do I Patent My Invention?

Brett Trout

The Search
While you may jump right into the patent application process, it is a good idea to first search to see if anyone has already patented your invention. A patent search may be anything from a Google search, to a Google Patents search, to a full patent search and legal opinion undertaken by your patent lawyer. As a full patent search and legal opinion can get expensive, many inventors opt for either no search or an online search they conduct themselves. While Google Patents is a simple and free option to search for similar patents, it can be difficult to navigate, increasing the likelihood that you might overlook existing patents and patent applications that could prevent you from obtaining your own patent. 

The Application
Once you are satisfied no one else has patented your invention, the next step is to draft and file a patent application with the United States Patent and Trademark Office (USPTO). While any inventor may file a patent application directly with the USPTO, it is nearly impossible for an untrained layperson to obtain a broad patent covering all protectable aspects of a particular invention. This is because it takes a very special set of skills to describe the invention broadly enough to cover the full scope of the invention, but narrowly enough not to encompass some combination of prior inventions, known as the “prior art.” The task is so difficult that not even ordinary attorneys are allowed to file patent applications on behalf of their clients. Only a patent lawyer, skilled in the art of patent drafting and having passed the rigorous “patent bar,” is allowed to file patent applications on behalf of others.  

All Patents Are Not Created Equal 
So, while it is possible to file your own patent application, it is not recommended. Even if you were somehow able to obtain a patent on your own, it is likely your patent will be too narrow to defend against competitors. If a patent is poorly drafted, it is easy for competitors to change a single element of the design and avoid infringement. Conversely, if a patent is properly drafted it can be very difficult for competitors to produce a competitive design that does not infringe the patent. 

What makes on patent better than another? In short, scope. Narrow patents make it easy for a competitor to circumvent the patent by making a minor change. Broad patents are more difficult to circumvent without the competitor having to remove a key element of the invention. Interestingly, if you have 100 patent lawyers all draft a patent on a single invention, no two of the patents will be the same. Some will be narrow, some broad, and some in between. The best way to know whether your patent lawyer is drafting a broad patent or a narrow patent is to inquire about the patent lawyer’s experience. How many patents has the patent lawyer drafted? How many patents has the patent lawyer defended in court? While these questions are not foolproof, they will give you an idea of the patent lawyer’s background and expertise. 

Prosecuting Your Patent Application
Prosecuting a patent application sounds like you are fighting in court, when in reality prosecuting your patent application means fighting back and forth with the Patent Office over the scope of your patent and the prior art. During prosecution of your patent application you are “patent pending.” While you are patent pending you cannot sue anyone until your patent is formally granted. During prosecution, if your patent application is broad enough to cover items in the prior art, then you must narrow the scope of your patent application until it no longer covers obvious combinations of items already in the prior art. So even if your patent application starts off broad, you may have to narrow it to obtain patentability. Prosecuting your patent application can take two years or more, depending on the scope of your patent application in comparison to the prior art. 

Granting Your Patent
Once you have narrowed your patent application enough to define around the prior art, the Patent Office will grant your patent. Once granted, your patent is good for twenty years from the filing date. You do, however, have to pay ongoing “maintenance” fees during that twenty years to keep your patent in force. Failure to pay a maintenance fee will cause your patent to become abandoned.

Related posts

Posted in Choosing the Best Lawyer, Patent Law. Tagged with , , , , , , , , , .