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FAQ: Everything You Need to Know About Patenting Your Invention

Brett J. Trout

You’ve created a new invention, congratulations! Protecting your idea through a patent is an essential step in safeguarding your intellectual property. Below, I answer some of the most common questions about the patent process to help you understand what’s involved and how to proceed.


1. What is a patent?

A patent is a legal document issued by the U.S. Patent and Trademark Office (USPTO) that grants you the exclusive right to make, use, sell, or distribute your invention for a specific period (typically 20 years from the filing date). This protection ensures others cannot use your idea without permission.


2. What types of patents are there?

There are three main types of patents:

  • Utility Patents: Protect functional inventions, such as machines, processes, or compositions of matter.
  • Design Patents: Protect the unique appearance or design of an object.
  • Plant Patents: Protect new, distinct plant varieties that can be asexually reproduced.

3. How do I know if my invention is patentable?

To be eligible for a patent, your invention must meet the following criteria:

  • Novelty: It must be new and not previously disclosed or publicly known.
  • Non-Obviousness: It cannot be an obvious improvement or combination of existing ideas.
  • Utility: It must have a specific and practical purpose.

Conducting a prior art search (reviewing existing patents and publications) can help determine if your invention meets these requirements. 


4. What is the first step in the patent process?

The first step is to document your invention thoroughly. This includes:

  • A clear description of how it works and what it does.
  • Diagrams, sketches, charts, photographs, or models if applicable.
    Once you document your invention, consult a patent lawyer to discuss the best approach for protecting your invention.

5. Do I need a prototype before applying for a patent?

No, a prototype is not required to file a patent application. However, a prototype may help you determine if your invention actually works, as well as the best way to manufacture it. Whether you have a prototype or not, your patent application must include detailed descriptions and drawings that enable someone skilled in the field to replicate your invention.


6. What is a provisional patent application, and should I file one?

provisional patent application is a temporary filing that establishes an early filing date for your invention. A provisional patent application will never turn into a patent. To obtain a patent, you must file a nonprovisional (standard) patent application. If you file a nonprovisional patent application within a year of your provisional patent you may be able to claim the earlier date of your provisional patent. The problem is that the date you establish with your provisional application only applies to the information you filed in your provisional patent application. If you leave something out, that something may fall into the public domain before you have a chance to file a nonprovisional patent application. 


7. How long does the patent process take?

The timeline can vary depending on the complexity of your invention and the workload at the USPTO. On average:

  • A provisional patent lasts for 12 months and must be converted into a non-provisional application within that time.
  • It typically takes 18–24 months or longer for the USPTO to review and issue a decision on a non-provisional application.
  • Depending on the complexity of your invention, how well your patent application is drafted, the examiner reviewing your patent, and how many similar inventions are out there, the patent process may take 2-4 years or more.

8. How much does it cost to patent an invention?

Costs can vary widely but generally include:

  • USPTO filing fees: $70–$320 for small entities, depending on the type of patent.
  • Patent lawyer fees: $12,000–$20,000+ over the course of 2-4 years.
  • There are additional fees for issuance, international filings, and maintenance.

9. What is the difference between a patent lawyer and a patent agent?

  • Patent Attorneys: Licensed lawyers who can draft and file patents, provide legal advice, draft contracts and licenses, and represent you in legal disputes.
  • Patent Agents: Individuals who are licensed to practice before the USPTO and can assist with filing and prosecution of patents but cannot provide legal advice or representation in court.

10. What happens after I receive a patent?

Once your patent is granted, you’ll need to:

  • Monitor the market for potential infringement.
  • Pay maintenance fees to keep the patent active (your patent lawyer will assist you with this).
  • Commercialize your invention by manufacturing, licensing, or selling the product.

11. What if I want to patent my invention internationally?

Patent rights are territorial, meaning a U.S. patent only protects your invention within the United States. If you wish to secure international protection, speak with your patent lawyer regarding costs and options. 


12. Can I file a patent myself, or do I need an lawyer?

While it’s possible to file a patent yourself (known as “pro se”), the process is highly technical and complex. Even if you do receive a patent, you may not be aware of critical flaws in the patent until you go to enforce it. A patent lawyer can help:

  • Draft a robust patent application.
  • Avoid common mistakes that can lead to rejection.
  • Maximize the scope of your protection.
  • Produce a patent that will stand up in court. 

13. What should I do if someone infringes on my patent?

If you suspect patent infringement:

  • Gather evidence of the infringement.
  • Consult a patent lawyer to discuss enforcement options, which may include sending a cease-and-desist letter or pursuing litigation.

14. Why should I work with a patent lawyer?

Patent law is intricate, and mistakes in your application can lead to delays or even rejection. A patent lawyer can:

  • Determine the best course of action to achieve your goals.
  • Conduct thorough patent/infringement/field of use searches if needed.
  • Draft clear and enforceable claims.
  • Draft an application that will support those claims and stand up in court. 
  • Navigate USPTO correspondence and appeals.
  • Advise you on the best course of action from filing to enforcement. 

14. Are all patents created equal?

No. If you hired 100 patent lawyers to draft a patent covering your invention, no two of those patents would be the same. They would all have different levels of breadth and defensibility. While the most expensive option is not always the best option the least expensive option is typically one of the worst options. Your patent will only be as good as the patent lawyer who drafted it. Choosing a good patent lawyer can be difficult. Flashy ads often say more about a patent lawyer’s marketing skills than their patent drafting skills. To find a quality patent lawyer who can help you protect your invention look for an experienced lawyer with years of experience not only drafting patents, but it defending those patents in court. Ask a lawyer you know if they know any good patent lawyers. Look for a patent lawyer with a good reputation and a proven track record of helping inventors like you obtain patents.  


Conclusion

Patenting your invention is a vital step in protecting your intellectual property and ensuring your hard work pays off. If you have more questions or need assistance with the patent process, feel free to contact me for a consultation.

Have a question I didn’t cover? Email me, and I’ll be happy to answer!

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