How to Get a Patent: A Quick Overview of the Process

Obtaining a patent is an important step to protect your intellectual property, but involves a long and complex process.  Understanding the basic requirements to obtain a patent as well as the steps of the application process can help you plan ahead.  

Can I Patent an Idea? 

An idea or suggestion alone cannot be patented, rather an invention can be protected with a patent granted by the U.S. Patent and Trademark Office (USPTO).  The invention must meet three criteria under 35 U.S.C. § § 101-103 to be considered patentable: 

1)     The invention must be new and useful; 

2)     The invention must be novel, meaning it has not been previously patented or publicly disclosed before filing; and

3)     The invention must be “non-obvious,” meaning that the invention should not be so similar to an existing invention in a way that should be obvious to a person with ordinary skill in that field. 

Where to Start to Determine if I Can Get a Patent:

What’s the process?  

Patent Search 

Once you have a patentable invention, the next step in the process is to have a professional patent search conducted.  Since a patent requires novelty, you will not be able to obtain a patent if your invention has already been publicly disclosed or overlaps substantially with an existing invention.  This is why it is a good idea to have a professional search conducted of previous public disclosures as well as foreign patents and printed publications.  

Patent Opinion

After a professional patent search is conducted, a qualified patent attorney can issue a patentability opinion, a legal opinion that analyzes the probability of your patent being granted.  This opinion does not guarantee that you will obtain patent protection for your invention, but can help you decide whether to make the financial investment and continue to the application process.  

Patent Application 

There are three types of patent applications.  

• Utility patents are used for any new and useful processes, machines, manufacturing processes, or composition of any new or improved matter.

• Design patents are used to protect new and original designs for articles.

• Plant patents are used for uniquely reproduced or new variety of plant, other than uncultivated plants.   

Different patent filings may be appropriate depending on your specific circumstances and concerns.  Determining which application to file requires an understanding of what each type protects.  A skilled patent attorney will be able to examine your invention and help you explore which option is best for you.  

Patent Prosecution/Examination

Once the application has been filed, it will first be examined for compliance with formalities.  If the examiner determines the application has failed to meet the formalities, there will be an opportunity to amend the application before it enters the next stage of review.

After this initial check, the application will then be examined on the merits.  During this review, the examiner will decide whether the application meets the statutory requirements to secure a patent.  If the examiner rejects the application at this stage, a response can be filed within a designated time period to argue the merits of the invention.  

What’s the patent timeline?

Waiting for a response from the patent office may take a year to several years.  This time period can be shortened to about 4-6 months with an expedited examination request.  

What’s the cost?

The USPTO patent application filing fees typically range from a few hundred to thousands of dollars, depending on the type of application and size of the entity applying.  

For more insights on patents, see our Patent Services Overview and Industry Focused Legal Solutions pages.