If you are a manufacturer or a creative person with a lot of innovative technological ideas, at some point you will probably consider how to patent the idea or product that you have created.
Please note that this article is not intended to provide legal advice. If you’re worried that someone might patent your idea before you can, and you have something to lose (money or time), it’s always good to take the risk and invest in a patent lawyer. However, if you are interested in the general process of patenting an idea, then read on.
How to patent an idea or design
All in all, this is a brief overview of the US patent process, which we will cover in more detail in this article.
- Decide why you want to get a patent.
- Determine if your idea is eligible for a patent.
- Fully document your new process or design. Creating a working prototype is always a good idea.
- Decide if you should use a lawyer.
- Perform a thorough patent search (preferably paying for one).
- Apply for a Provisional Patent Application (PPA) if you need to.
- Develop and test your idea to prepare for the provisional patent application process.
- Apply for a patent.
- A patent examiner will review your application and determine if you qualify for a patent.
This is the short version. Now let’s get into the details. If you are more interested in a specific step, feel free to scroll down to this section of the article.
1. Why do you want to get a patent?
Before you go too far down this path, it’s important to understand that patents alone won’t make you rich.
Take Thomas Davenport, for example. Here is Mr. Davenport’s patent, which he finally received in 1837 after many unsuccessful attempts.
Davenport sold many of his belongings (and even his horse) to get one of these electromagnets. He and his wife spent years experimenting and refining their machine, finally getting their patent in 1837.
After that, basically nothing happened. He set up a laboratory in New York to manufacture and market his engine. But its expensive and unstable DC motor could not compete with the steam engines of the era. Davenport eventually died without earning a dime from his patent.
2. Is your idea eligible for a patent?
When considering whether your idea or design will qualify for a patent, you must first consider what type of patent it might qualify for. There are three types:
- Utility Patent: Defines a new process or an improvement to an existing process, or how a machine or device works.
- Design Patent: defines the appearance or appearance of a device or object.
- Crop patent: focused on agriculture, this patent defines a new plant variety.
Most inventors who come up with a completely new idea for a device or gadget will be interested in a useful information patent.
The United States Patent and Trademark Office (USPTO) has a very clear set of guidelines for inventions that can qualify for a patent:
- Utility: The idea should have a «useful purpose» and a practical one — that is, if you came up with an idea for a washing machine that washes clothes using some unique process that doesn’t require water like most other washing machines, you should be able to prove that such a machine can actually work as described.
- Not created by nature: an idea cannot include something created by «laws of nature» or «physical phenomena». For example, if you are exploring a remote jungle and discover new types of trees, you cannot patent them.
- Not just an idea if you only have an idea that you sketched on a napkin at lunchtime and think you can patent it, think again. The USPTO states that «A patent cannot be obtained on the basis of an idea or proposal alone.» Be prepared to describe in detail how your new invention works.
- Novel and «non-obvious»: the idea must be sufficiently unique or new. Obviously, an existing patent or product on the market can no longer exist. Even a presentation, a scientific meeting, or a demonstration at a trade show can make it impossible for you to patent an idea. There are a lot of legal loopholes here, so if you feel like you’ve come up with this idea in the first place, it’s time to contact a patent lawyer and discuss your case.
- non-creative: it refers to intellectual property, like writing or art. Patent law does not cover this, copyright law.
The most obscure definition above is «non-obvious», but even that becomes clear once you start looking at the industry covered by the patent. According to attorney Matthew Hickey of RocketLawyer.com:
“Courts examining whether an invention is obvious will look at the scope and content of existing knowledge and technology in that industry, the level of what is customary skill in that industry, the differences between the claimed invention and what is already common in the industry, and any other objective evidence that your new idea is not obvious.”
If you really know what you’re doing, then you’ve probably been involved in your industry for quite some time and should already know what the experts consider «obvious».
3. Fully Document Your Idea
The easiest first step in the application process is describing the idea behind your invention. You must do this formally, and in fact the witness (and even the second witness) must sign your description.
Docie Invention & Parent Marketing actually provides a free worksheet for inventors to use for this. The key elements of this table include a very detailed description of the operation of the device and a drawing. If you need inspiration on how to draw your invention, just look at the patents that date back to the early 1800s.