A U.S. patent for an invention, which is issued by the United States Patent and Trademark Office (USPTO), grants an inventor property rights to his or her invention. Basically it gives inventors the right to exclude others from making, using, offering for sale, or selling that particular invention in the United States or to import the invention into the United States. Once the patent is issued, however, it is the inventor’s responsibility to make sure that no one infringes upon it. The USPTO won’t do it for you.
There are three different types of patents—utility, design and plant. A utility patent protects processes, machines, articles of manufacture, or compositions of matter. A design patent protects design elements for articles of manufacture. A plant patent protects distinct and new asexually-reproduced varieties of plants. Utility and plant patents last 20 years from the date the patent application was filed, so long as you followed through on payment of your maintenance fees. Design patents, on the other hand, last only 14 years from the date that they are granted.
There is also something called a provisional patent, which is only applicable to utility patents. A provisional patent is easy and cheap. All you have to do is submit a written description of your invention and any drawings that might be needed to understand the invention. What’s nice about it is it only costs $220. So why don’t all inventors opt for the provisional patent? Well, the point of a provisional patent is really just to test your invention to see if it has real potential in the marketplace. Provisional patents last only 12 months, so they protect your invention for a short while without forcing you to go the whole nine yards and apply for a regular patent. Once the 12 months are up, you can either abandon the patent, having spent little in upfront costs, or you can apply for the full non-provisional utility patent, but it’s up to you to take the initiative to do so.
Before you put all of the work into completing a patent application, it’s recommended that you first do a thorough search of patents to make sure your idea is not already on file. If it isn’t, then go ahead and start the application process.
Patent applications are tricky and complex, which is why it’s always recommended, especially for beginners, that you hire a patent attorney or agent to work with you on the application. You can certainly draft the first copy of the application yourself and then take it to a professional to work out the kinks, but nothing should be submitted before an attorney or agent has had a chance to look it over. A patent is a legal document, and it should be treated as such. The better it is written, the better the protection the patent will produce.
The only person who is legally allowed to apply for a patent is the inventor, with a few exceptions. If the inventor is dead, the patent application may be made by the administrator or executor of the estate. If the inventor is insane (legally), the application may be made by a guardian. If the inventor refuses to apply or cannot be found, a joint inventor or person with proprietary interest in the invention may apply on behalf of the non-signing inventor. If two or more inventors jointly create an invention, they must apply as joint inventors. An investor or anyone who makes a financial contribution is NOT an inventor. Officers and employees of the USPTO cannot apply for patents.
Begin the process by determining which type of patent you should apply for—utility, design or plant—and then get the appropriate application online through the USPTO Web site. Depending on the type of patent you are applying for, what you include in the application will vary.
A utility patent application must include the following:
For more specific, detailed information on utility patents, visit the USPTO Web site.
A design patent application must include the following:
For more specific, detailed information on design patents, visit the USPTO Web site.
A plant patent application must include the following:
For more specific, detailed information on plant patents, visit the USPTO Web site.
Patents are expensive, and they can get even pricier when you consider all the fees that you never thought existed. A filing fee, search fee and examination fee are all due at the time of filing.
Filing Fee: Costs between $220 and $850 depending on the type of patent you are applying for.
Search Fee: Costs between $100 and $540 depending on the type of patent you are applying for.
Examination Fee: Costs between $860 and $1,510 depending on the type of patent you are applying for.
If the USPTO accepts your patent, you must pay the post-allowance (issue) fee, which ranges between $860 and $1,510 depending on the type of patent you are applying for. The fees don’t stop there though. In order to maintain your patent you have to pay three maintenance fees—3.5 years, 7.5 years and 11.5 years. These fees vary depending on how long you’ve held your patent.
3.5 years: $980
7.5 years: $2,480
11.5 years: $4,110
(All fees are subject to change over time.)
IMPORTANT NOTE: These fees can be pretty steep, especially for a lone inventor or a small business. That’s why you can apply for small-entity status, which reduces the fees by 50 percent for those eligible. The USTPO defines “small entity” as an independent inventor, a small business concern or a non-profit organization.
If you have a truly great invention and you’re not sure if you should patent it, err on the side of caution and patent it. Filing for a patent may be painstaking and expensive, but it’s better than getting ripped off after all the work you’ve put in.
