Who Can Apply for a Patent? The 2025 U.S. Eligibility Guide for Inventors, Startups & R&D
Most inventors don’t realize they can lose patent rights simply by using the wrong contract language—or by waiting too long to file. Patent eligibility isn’t just about who invented something; it’s about who has the legal right to file and when they do it.
Stanford University learned this lesson the hard way in 2011. Despite funding research and employing the inventors, the Supreme Court ruled that Stanford didn’t own a valuable medical diagnostic patent because of imprecise contract language. The researcher had signed an agreement saying he would “agree to assign” inventions to Stanford, but had already signed a separate agreement with Cetus Corporation that “did hereby assign” his rights away. Stanford lost the case, illustrating the importance of proper documentation for patent applicants.
According to the WIPO, over 598,000 patent applications were filed with the USPTO in 2023, representing innovations from individual inventors, multinational corporations, universities, and research institutions worldwide. Globally, patent filings reached 3.55 million that same year, marking a continuation of the upward trend in inventive activity. This surge underscores both the diversity of patent applicants and the growing importance of understanding who has the legal right to file.
Patent law establishes specific criteria for determining eligibility to file patent applications. Whether you’re a solo inventor working in your garage, a business executive leading a corporate R&D team, an academic researcher at a university, or a startup founder developing breakthrough technology, knowing your rights and obligations as a patent applicant can mean the difference between securing valuable patent protection and losing your competitive advantage.
This guide examines the various categories of eligible patent applicants—from individual inventors to large corporations—and explains the legal requirements each must meet, backed by recent case law, USPTO data, and industry research.
Who Is Eligible to Apply for a Patent
The fundamental principle of patent law is that patent applications must be filed by or on behalf of the actual inventor or inventors who created the invention. The U.S. Supreme Court has affirmed that patent rights vest first in the inventor, not an employer or other entity, even for federally funded inventions. This requirement ensures that patent rights are correctly attributed to those who made genuine inventive contributions.
U.S. patent law defines an inventor as someone who contributes to the conception of at least one aspect of the patented invention as claimed. Simply providing funding, supervising others, or executing routine experiments without creative contribution does not qualify one as an inventor—only those who have materially contributed to the inventive idea should be named. It is essential to distinguish a true inventor’s contribution from that of someone who merely assists in building or reducing the invention to practice, as only the inventor’s inventive input qualifies under patent law.
Individual inventors who created the invention can file patent applications directly with the patent office—whether provisional patent applications to secure early filing dates or non-provisional applications for complete examination. These inventors retain full ownership rights to their inventions unless they assign those rights to another party through a written agreement. By default, the inventor owns the rights to the invention unless an assignment is made.
Companies and employers that own invention rights through employment agreements or assignment contracts can file patent applications—but only if their contracts use “hereby assign” language rather than “agree to assign.” The America Invents Act (AIA) of 2011 updated U.S. law to explicitly allow an assignee (like a company) to be listed as the applicant in a patent filing, but weak contract language can invalidate this right entirely.
Patent assignees who have legally acquired rights from the original inventor—through purchase, license, or other transfer—possess the same filing rights as the original inventors. Universities often require faculty or researchers to assign invention rights to the institution, allowing the university as assignee to file patent applications.
Joint inventors who collaborated on developing the invention together must all be named on the patent application if they each contributed to the invention’s conception. Each co-inventor must have contributed to at least one claim in the application, and all named inventors share equal ownership rights by default unless agreements specify otherwise.
Legal representatives acting on behalf of inventors or patent owners can prepare and file applications when properly authorized. For example, if an inventor is a minor or has a legal disability, a legal representative can act on their behalf in the patent process. Patent attorneys (licensed lawyers who have passed both state bar exams and the USPTO patent bar) frequently handle the filing and prosecution of patent applications for applicants, bringing comprehensive legal training and experience that extends far beyond basic paperwork filing.
In all situations, patent applicants must demonstrate legal ownership or rights to the invention through proper documentation. This typically includes inventor declarations (oaths stating that the named inventors are the true inventors) and, if applicable, assignment agreements that transfer rights to an assignee. Incorrectly naming inventors—omitting a real inventor or including someone who isn’t—or filing without proper rights can jeopardize a patent.
Individual Inventors as Patent Applicants
Any person who creates an invention can apply for patent protection, regardless of their educational background, professional status, or financial resources. The U.S. patent system was designed to encourage innovation by providing inventors with exclusive rights to their creations for a limited time (generally 20 years for a utility patent).
History validates this accessibility: Thomas Edison filed over 1,000 U.S. patents individually between 1869 and 1931, proving how a prolific solo inventor can build a substantial intellectual property portfolio that drives technological advancement.
Individual inventors retain full ownership of their patent rights unless and until they choose to assign those rights to someone else. Even if you work for a company, inventions you create on your own time and without using company resources typically belong to you personally. However, most companies require employees to sign invention assignment agreements as a condition of employment, so always review your employment contract carefully.
If you are a small business owner, you may need to strategically manage your patent rights, including licensing your invention or collaborating with larger companies to commercialize your product. Small business owners often face unique challenges and opportunities in the patent process, especially when negotiating with established entities or licensing companies.
Age and Status Requirements
The USPTO places no minimum age or specific status requirement on inventors. Minors and individuals with disabilities can be inventors, provided they have proper legal representation to guide them through the process. Innovation has no age limit—some patent holders have been as young as 6. Robert W. Patch became the youngest person to receive a U.S. patent at age 6 in 1963 for his invention of a toy truck (his father, a patent attorney, assisted in preparing the application). However, regardless of age, working with experienced patent counsel ensures the application is adequately prepared to withstand USPTO examination and competitive scrutiny.
Actual Inventive Contribution Required
Individual inventors must have made actual inventive contributions—not just provided an idea or funding. Under patent law, the inventor is the person (or persons) who conceived the invention in its specific form, including key elements as defined in the patent claims. Simply paying for research, building a prototype designed by someone else, or suggesting a problem without solving it would not qualify someone as an inventor.
Self-Representation vs. Professional Help
Individual inventors can choose to represent themselves (pro se) or hire a patent attorney to assist with the patent process. While self-representation is allowed, the success rate differential is stark: Thompson Patent Law achieves a 94% allowance rate through proprietary Litigation Quality Patent® services, while pro se applicants face dramatically lower success rates—often below 50% according to USPTO data. This isn’t just about paperwork—it’s about proper calibration on obviousness determinations, which develops only through years of experience battling Patent Office bureaucrats.
For serious business owners and inventors who view their patents as critical business assets, working with a fully licensed patent attorney is essential. Patent attorneys are licensed lawyers who have passed both their state bar exam and the USPTO patent bar exam, giving them comprehensive legal training that extends far beyond patent prosecution. They can provide strategic legal advice on licensing, enforcement, litigation risk, corporate transactions, and the broader business implications of intellectual property decisions.
For inventors facing budget constraints, patent agents represent a more limited option. Patent agents have passed the USPTO patent bar exam and are authorized strictly to prepare and file patent applications with the USPTO. However, they are not attorneys, have not passed any state bar exam, and are legally prohibited from providing any legal advice beyond the mechanics of patent application filing. They cannot advise on patent licensing agreements, infringement matters, corporate IP strategy, or any other legal issues that commonly arise in commercializing inventions. Their training and credentials extend only to passing the patent bar exam—they lack the comprehensive legal education and ongoing legal practice experience that patent attorneys obtain through law school, bar examination, and years of diverse legal practice.
The USPTO offers resources, such as the Pro Se Assistance Program and the Patent Pro Bono Program, to help independent inventors. Access to representation is improving diversity in inventorship—only about 13% of inventors named on U.S. patents are women, as of recent years. Yet, 43% of patent pro bono clients in 2022 were female, indicating that outreach programs are engaging more women in patent applications.
First-to-File System
With the U.S. now on a first-to-file system (since 2013’s AIA), timing is everything. Your competitors aren’t waiting—they’re already working on similar ideas. But filing early isn’t enough—filing with a weak patent application creates a roadmap for competitors to design around your innovation more quickly and cheaply. In today’s first-to-file environment, hesitation costs you control, and inadequate preparation hands your competitors the blueprint to beat you to market.
Inventors should seek patent protection as soon as possible to avoid losing rights to competitors. The first inventor to file has priority in most cases, making speed critical in the modern patent landscape.
Current Statistics
In FY2023, approximately 24% of U.S. utility patent applications were filed by small entities or micro entities (independent inventors and small businesses)—a proportion that has been increasing due to outreach efforts. While the share of patents granted to independent (unaffiliated) inventors has declined since the mid-20th century as corporate R&D has grown, individuals still contribute a steady stream of innovations.
Multiple Inventors and Co-Inventors
When multiple people contribute to the development of an invention, patent law requires that all true co-inventors be named on the patent application. This situation commonly arises in research teams, collaborative projects, startups with co-founders, and corporate labs—anywhere that innovation results from combined efforts and brainstorming.
Note: It is crucial to correctly name all true inventors on a patent application, as errors or omissions can lead to serious legal consequences, including the potential invalidation of the patent. For professional guidance through the patent application process, consult an experienced patent attorney.
Basic Requirements for Joint Inventorship
All co-inventors must have contributed to at least one patent claim in the application. A patent claim defines a specific aspect of the invention that is legally protected. If you have made an inventive contribution to any one claim, you belong on the inventor list. Conversely, if someone on the team did not contribute to the conception of any of the claimed features, they should not be listed as an inventor.
An inventor must have contributed to the conception of the idea of the claimed invention—merely helping with “reduction to practice” (turning an idea into reality) is not enough to confer inventorship. For example, a lab technician who builds a prototype following instructions isn’t an inventor if they didn’t help conceive the inventive concept.
Determining true inventorship requires careful legal analysis. Experienced patent counsel can properly assess contributions, ensuring all true inventors are named while avoiding the inclusion of non-inventors—both errors can jeopardize patent validity.
Ownership Rights
Co-inventors share equal ownership rights in the patent by default, unless there are agreements that say otherwise. This is critical: if you and a colleague are co-inventors, each of you (absent any contract) can license or sell your interest in the patent independently. All named inventors are joint owners.
This default equal ownership can lead to complications if not managed—one inventor could grant a license without the others’ consent. To avoid such issues, companies typically have inventors assign their rights to the company upfront, and co-inventors often have contracts among themselves to clarify rights and revenue sharing.
A notable example of successful co-invention is Larry Page and Sergey Brin, who co-invented Google’s PageRank algorithm and were co-inventors on the foundational patent for that search technology. Their collaborative work at Stanford University in the 1990s led to one of the most valuable patents in internet technology, demonstrating how joint inventors can create breakthrough innovations.
Timing and Claim-Specific Contributions
The timing of contributions matters. All inventors must contribute during the development of the invention—specifically, contributions that lead to the conception of elements in the patent claims. Contributions made after the patent filing (like improvements or new features added later) are not relevant to inventorship of the original patent.
Inventorship can even change during prosecution if claims are added or removed. There is no requirement that each inventor contribute to every claim; indeed, in large teams, it’s common for different inventors to contribute to different claims.
International and Multi-Company Collaborations
Co-inventors can come from different companies or countries, creating complex ownership and legal situations. It’s not unusual for inventors from multiple organizations to jointly invent something—for example, a company partners with a university on research, and employees from each end up co-inventing a patentable invention. In such cases, typically each inventor’s rights initially belong to their respective employer (by assignment agreements), so the patent may end up with multiple assignees or require inter-institutional agreements.
Legal Enforcement
Patent offices strictly enforce the legal requirements for joint invention. Naming the wrong inventors (either failing to include a true inventor or including someone who isn’t) can be grounds for invalidating the patent or rejection of the application. The USPTO requires an inventor oath/declaration from each named inventor, affirming their inventorship under penalty of perjury.
Designating the First Named Inventor
When filing a patent application with multiple inventors, the inventors must choose the order in which their names will appear. The first-named inventor is more than just a ceremonial position—by default, the USPTO sends primary correspondence to the first-named inventor (if no attorney is on record). The first page of a patent typically lists the first-named inventor and contains key information about the application, including the inventor’s order, application details, and legal references.
Being the first-named inventor can have reputation implications—patent databases and literature often index patents by the first inventor’s name. A patent might be cited as “Smith et al.” if John Smith is the first inventor among several.
However, it’s essential to emphasize that the order of inventors does not affect legal rights or ownership. All co-inventors have equal rights (unless modified by agreements). The first inventor has no greater share of ownership simply because they are listed first.
Regardless of inventor order, all co-inventors must ensure their contributions are adequately documented and that patent applications are drafted with sufficient breadth and depth to protect the full scope of the invention.
Companies and Employers as Patent Applicants
Most innovations in today’s economy originate within corporate research and development environments, making employer ownership of patent rights a critical aspect of modern patent law. When an employee invents something as part of their job, it is standard practice that the employer will own the invention, provided that proper agreements are in place. To secure these rights, companies must file patent applications with the appropriate patent or trademark office, such as the United States Patent and Trademark Office (USPTO), to obtain a United States patent.
How Employer Ownership Works
Employer ownership typically results from “work for hire” or invention assignment agreements. In the U.S., without an explicit agreement, an inventor (even an employee) typically owns their invention. However, virtually all tech and engineering companies require employees (and often contractors or consultants) to sign contracts that automatically assign patent rights to the employer for inventions made in the scope of employment or using company resources.
The exact wording matters tremendously. As the Stanford v. Roche case taught, “hereby assign” is effective immediately, whereas “agree to assign” may be interpreted as only a promise, not an actual present assignment.
Beyond contract language, companies must ensure their patent applications are drafted with sufficient strength to withstand competitive pressure. Not all patents are created equal—weak patents don’t just fail to protect, they create roadmaps for competitors to design around your innovation more quickly and cheaply. Strategic patent prosecution with experienced counsel ensures applications are engineered to deter competitors from the outset.
Employment contracts usually cover inventions created within the scope of employment, or related to the company’s business, or developed using company equipment or trade secrets. Many states (like California) have laws that allow inventors to keep inventions that are entirely unrelated to their job and created on their own time, provided they didn’t use the company’s facilities and the invention is not related to their business.
Scale of Corporate Patent Activity
When companies own the rights to an invention, they can file patent applications directly with the relevant authorities. The USPTO’s AIA rules explicitly allow a company (the assignee) to be listed as the applicant, simplifying the process.
The scale is staggering: IBM’s scientists and engineers were granted 9,130 U.S. patents in 2020—the most of any company that year. In 2024, Samsung and TSMC topped the U.S. patent grants list with 6,377 and 3,989 patents, respectively, nearly 2% of all U.S. patents granted.
Figure 1: Top recipients of U.S. utility patents in 2024. Samsung Electronics led with 6,377 grants, followed by TSMC (3,989) and Qualcomm (3,422). Source: IFI Claims, “2024 U.S. Top 50 Patent Assignees” (IFI Names; table dated Jan 7, 2025).
While large corporations have in-house legal teams and vast resources, startups and smaller companies must be even more strategic with their patent investments. Working with experienced patent counsel who has successfully protected innovations for Fortune 500 companies like Apple, Google, Intel, and Microsoft ensures that smaller entities can compete with strategic, well-engineered patents rather than weak applications that waste resources.
Each of those patents lists the company as the assignee/applicant, but the inventors are the individual employees or teams who created the invention. This illustrates how major corporations dominate patent filings, though thousands of smaller companies also contribute.
Distribution Across Entity Types
According to the National Science Board, in 2022, approximately 53% of U.S. patent grants were awarded to foreign inventors, while 47% were awarded to domestic inventors. Many of these domestic patents are concentrated among large firms. Small businesses also play a significant role—roughly a quarter of applications come from small or micro entities—and the USPTO has initiatives in place to support these groups.
Preventing Ownership Disputes
Even with assignment agreements, potential ownership disputes can arise. Beyond the Stanford v. Roche case, another area to watch is the company’s employee departures. If an employee files a patent application after leaving, but the invention was conceived while they were at the company, it can lead to conflicts. Most agreements include clauses requiring disclosure of inventions made shortly after leaving (within a one-year window or less) to capture any lingering developments related to work done at the company.
For startups and small businesses, ensuring you own the invention before applying is paramount. Investors will want to ensure that any core patents are in the company’s name, not an individual’s, to avoid ownership disputes.
Patent Assignees and Rights Holders
Patent rights are a form of property, and like any property, they can be bought, sold, or licensed. An inventor can transfer (assign) their rights to someone else, either before or after a patent application is filed. The recipient of those rights is called an assignee, who effectively steps into the inventor’s shoes with respect to ownership and control of the patent.
How Assignment Works
Assignees acquire rights through purchase, licensing, or assignment agreements that transfer ownership from the original inventors. These transactions must be in writing to be legally effective (in the U.S., a patent assignment must be a written instrument). Often it’s as simple as an “Assignment” document that the inventor signs, saying, “I hereby assign all rights in [invention or patent application] to [Assignee].”
Once executed, the assignee becomes the owner. Assignments must be recorded with the USPTO—the USPTO maintains an Assignments Record database. Recording an assignment (within 3 months of signing, or before a subsequent assignment) protects the assignee’s interests by giving public notice.
University Patents
Universities often file patents as assignees of professors or student inventions. The University of California system was granted 570 U.S. utility patents in 2022, the most of any university worldwide. Those patents would list the individual researchers as inventors, with the “University of California” as the assignee of record. This model enables universities to manage and license patents (often through their technology transfer offices).
Patent Aggregators
There is a category of companies known as patent aggregators or licensing companies that acquire large numbers of patents to monetize them. Intellectual Ventures, founded in 2000, amassed a portfolio of around 40,000 patent assets (patents and applications) over the years. Intellectual Ventures doesn’t manufacture products itself; it licenses its patents to other companies.
Licensing vs. Assignment
Patent licensing differs slightly from assignment: a license grants someone permission to use the patented invention without transferring ownership of it. It’s like renting the rights. Many inventors who don’t commercialize their products themselves will license their patents to existing companies in exchange for royalties.
Due Diligence Requirements
Assignees and licensing entities must be careful with legal formalities. When purchasing a patent, due diligence is crucial. Verify that the seller has a clear title (with no prior assignments or liens), check whether maintenance fees are up to date, ensure the chain of title from the inventor to the seller is documented, and determine whether any encumbrances exist.
It’s worth noting that if an invention was federally funded (in the U.S.), the Bayh-Dole Act gives the funding agency certain rights (like a nonexclusive license for government use). An assignee of a university patent might have to abide by those constraints.
Legal Representatives and Patent Professionals
Inventors and assignees often rely on specialized professionals to navigate the patent process. The USPTO recognizes two types of registered practitioners who can represent applicants before the patent office: patent attorneys and patent agents.
Patent Attorneys: Comprehensive Legal Representation
Patent attorneys are licensed lawyers who have passed both their state bar examination and the USPTO patent bar examination. This dual qualification means they possess comprehensive legal training from law school, ongoing legal education requirements, and the full scope of legal practice authority. Patent attorneys can provide strategic counsel on all aspects of intellectual property, including patent prosecution, licensing negotiations, infringement analysis, litigation strategy, corporate transactions, and the broader business implications of IP decisions.
For serious business owners who view patents as critical business assets, working with a patent attorney is essential. Patent attorneys bring expertise across multiple legal domains—contract law, corporate law, litigation, and intellectual property—enabling them to protect your interests comprehensively. Their training extends far beyond the mechanics of filing patent applications to encompass the strategic legal thinking required for building valuable IP portfolios that serve business objectives.
Patent Agents: Limited Filing Authority
Patent agents represent a more limited option, suitable primarily when budget constraints make attorney representation impractical. Patent agents have passed the USPTO patent bar examination but are not attorneys—they have not attended law school, have not passed any state bar examination, and are legally prohibited from providing any legal advice beyond the strict mechanics of preparing and filing patent applications with the USPTO.
Patent agents’ authority is limited to USPTO practice only. They cannot advise on patent licensing agreements, infringement matters, litigation risk assessment, corporate IP strategy, or any other legal matters. Their training and credentials extend only to what is required to pass the patent bar exam—they lack the comprehensive legal education, ongoing bar requirements, and diverse legal practice experience that patent attorneys obtain through years of legal training and practice across multiple areas of law.
Because patent agents are prohibited from practicing law outside the narrow USPTO filing context, they cannot gain the broad legal experience that patent attorneys develop through handling diverse legal matters. This limitation means they cannot provide the strategic legal counsel that serious business owners need when making critical decisions about IP protection, commercialization, and enforcement.
Registration Requirements
To represent others before the USPTO in patent matters, practitioners must meet specific registration requirements established by the USPTO. They must have a technical background (meeting specific education criteria in science or engineering) and pass the Patent Bar Examination, which tests knowledge of patent law and procedure.
As of 2025, there are over 52,000 active patent practitioners in the United States (about 38,000 patent attorneys and 14,000 patent agents) registered with the USPTO. This relatively small community (compared to the 1.3+ million attorneys in the U.S. overall) reflects the high level of specialization required for patent work.
Benefits of Professional Representation
Using a patent practitioner is not mandatory—inventors can file on their own—but it is very common, especially for companies and for complex inventions. Given the complexity of drafting patent claims and navigating the examination process, having skilled legal counsel can significantly improve the quality of the application and increase the likelihood of obtaining a strong, enforceable patent.
A recent study found that receiving an initial patent tends to increase the use of legal representation for subsequent applications by independent inventors, indicating that obtaining a patent can help inventors afford and seek professional help in the future.
Foreign Inventors
Foreign inventors often need U.S. patent attorneys to file with the USPTO. While it is technically possible for a non-U.S. resident to file a U.S. patent application pro se, communication and knowledge barriers make it impractical. More than half of U.S. patents issued in recent years have been to foreign entities, so U.S. patent firms often work extensively with international clients.
Pro Bono Assistance
The Patent Pro Bono Program has served over 3,800 inventors since its start, with nearly 2,000 patent applications filed through pro bono assistance. This indicates that navigating the patent system often requires assistance—and when cost is a concern, programs are available to bridge the gap.
Basic Requirements for Patent Applicants
Regardless of who files a patent application, the invention itself must meet specific fundamental requirements for patentability. Patent law has substantive criteria to ensure that only genuine innovations receive patent protection. Patent examiners must determine whether the invention meets all legal and patentability requirements before granting a patent.
Core Patentability Requirements
Novelty (Newness): The invention must be novel, meaning it is not fully disclosed in any single prior art reference before you filed it. Prior art includes any publicly available information (patents, publications, products, etc.) that predates your invention or your filing date. The U.S. has some grace period provisions (if you disclose your invention, you have 1 year to file), but in most jurisdictions, absolute novelty is required. For more information on handling your patent rights, see the differences between an assignment and a license agreement.
Non-Obviousness (Inventive Step): Even if novel, an invention must also be non-obvious. This means the differences between the invention and the prior art are such that the invention would not have been obvious to a person of ordinary skill in the relevant field at the time of the invention. Determining non-obviousness is the #1 challenge in patent prosecution—this critical assessment requires sophisticated legal doctrines that must be ‘baked into the cake’ from initial filing. DIY inventors and novice attorneys often lack the calibration that comes from years of experience overcoming obviousness rejections. This is where experienced patent counsel becomes essential for achieving high allowance rates. Non-obviousness (also called inventive step outside the U.S.) is often the major hurdle—many rejections are based on this ground.
Utility (Usefulness): For utility patents, the invention must have some specific and substantial utility—in simple terms, it has to do something useful and not be totally inoperative or bogus. This is usually a low bar; almost all inventions, except the most abstract or scientifically implausible, will meet the utility requirement.
Patentable Subject Matter: The invention must be of a type that is eligible for patenting. U.S. law says processes, machines, manufactures, or compositions of matter (and improvements thereof) are eligible. Abstract ideas, natural phenomena, and rules of nature are not patentable.
Enablement and Description: The patent application must fully, clearly, and precisely describe the invention. You have to provide a complete disclosure of how to make and use the invention such that a person skilled in the art could replicate it without undue experimentation. You can’t hold back secrets—you must teach the public everything about your invention in exchange for the patent.
Definiteness: The claims (which legally define the invention’s scope) must be clear and definite. Ambiguous or overly broad claims will be rejected.
Practical Requirements
Inventor’s Oath or Declaration: As part of the application, each inventor must sign an oath or declaration stating that they believe themselves to be an original inventor and acknowledging their duty to disclose relevant information to the USPTO.
Fees: Patent applicants must pay the applicable fees to the USPTO. Current USPTO filing, search, and examination fees for a utility patent for a large entity are approximately $1,820. Small entities pay 60% of the large entity fee, and micro entities pay 20%. When submitting a patent application, applicants must pay a filing fee that varies depending on the type of application and the size of the submitting entity. There are also fees for excess claims, oversized applications, and other related services.
While USPTO fees are fixed, the investment in experienced legal counsel—typically several thousand dollars for comprehensive patent application preparation—provides exceptional value by establishing proper protection from day one rather than requiring costly corrections later. Saving money upfront on legal fees often leads to wasting far more time and money pursuing inadequate protection or getting no patent at all. Thompson Patent Law’s 94% allowance rate demonstrates that experienced patent prosecution consistently delivers stronger protection than DIY approaches.
After the grant, maintenance fees are due at 3.5, 7.5, and 11.5 years to keep the patent in force (these can total thousands more). According to WIPO, only about 17.5% of U.S. patents last the full 20-year term—most lapse at some point due to maintenance fees or obsolescence.
Formalities: The application must include all required sections—a specification (written description and enablement of the invention), claims, an abstract, and any necessary drawings. The USPTO has formatting rules (margins, line spacing, reference numeral usage in drawings, etc.).
Steps to Apply for a Patent
The process of obtaining a patent can be broken down into several key steps, each requiring careful attention. One of the most important steps is to file a patent application with the relevant patent office, such as the USPTO or WIPO, to secure legal protection for your invention. Understanding this process helps inventors and companies make informed decisions about their intellectual property strategies.
1. Idea Conception and Documentation
Before anything is filed, you, as an inventor, conceive an idea that you believe is novel and valuable. It’s crucial at this stage to document your invention—keep inventor’s notebooks, diagrams, code printouts, test results, and other relevant materials, along with their corresponding dates. While the U.S. is now a first-to-file system (meaning that whoever files first generally has priority), good documentation remains valuable for several reasons.
2. Preliminary Prior Art Search
Conducting prior art searches before filing is highly recommended. This helps identify existing technologies or publications similar to your invention. A search can be conducted by the inventor using free tools (such as Google Patents, the USPTO’s search databases, lens.org, etc.) or by hiring a professional search firm or a patent attorney.
By doing this, you might find that aspects of your idea are already known, and you can tweak your invention or prepare to distinguish it. A thorough search can strengthen your application by highlighting the novel aspects that you should emphasize. Keep in mind, no search is 100% comprehensive, but some intelligence is better than going in blind.
3. Decide on Provisional vs. Non-Provisional Application
If your invention is at a stage where you can describe it, but may need more time to refine certain aspects or gather funds, you may file a provisional patent application first. A provisional application is a lighter, informal application that secures a filing date for your invention but is not examined or published (it acts as a placeholder for 12 months).
Filing a provisional application incurs lower USPTO fees (currently $300 for large entities, $150 for small entities, and $75 for micro entities) and fewer formal requirements. While provisional applications have lower USPTO fees, investing in experienced legal counsel to prepare even a provisional application—typically several thousand dollars—provides exceptional value by establishing proper protection from day one rather than requiring costly corrections later. A poorly drafted provisional application can be worse than no application at all, failing to provide adequate support for later non-provisional claims.
In FY2023, over 149,000 provisional applications were filed with the USPTO, demonstrating the popularity of this route, particularly among startups and individual inventors.
After filing a provisional application, you have 12 months to file a corresponding non-provisional (formal) application claiming priority to the provisional. This allows you to mark your invention “Patent Pending” and potentially test the market or continue R&D before committing to the full cost of a patent.
Think of a provisional application like a stock option: it gives you rights for a set time period that expire unless you exercise them. Provisional applications are superior to NDAs: Unlike NDAs or handshake agreements, provisional applications create concrete legal protection and immediately monetizable property rights. Most sophisticated companies require inventors to file provisional applications before discussing inventions—this protects companies from lawsuits related to idea submissions while establishing concrete legal rights that NDAs cannot provide. Being ‘patent pending’ opens up business opportunities that are unavailable without a filed application, including licensing discussions, investor presentations with credibility, and access to balance sheet assets.
4. Prepare the Patent Application
This is the most critical step. Preparing (drafting) a strong patent application involves writing a detailed specification, making any needed drawings, and crafting a set of claims that define your invention’s legal scope.
The specification should describe various embodiments and examples, and include the best mode (your preferred implementation). Claims are usually drafted from broad to narrow: the broadest claim covers the invention’s concept at a high level, and dependent claims add narrower features for fallback positions.
The quality of drafting matters—a well-drafted application can result in stronger protection and smoother prosecution. Not all patents are created equal. Weak patents don’t just fail to protect—they create roadmaps for competitors to design around your innovation more quickly and cheaply. Your missteps become their blueprints. Thompson Patent Law’s proprietary Litigation Quality Patent® services prevent these pitfalls through methodologies refined over 1,500+ issued patents with a 94% allowance rate.
Determining obviousness is the #1 challenge in patent prosecution, requiring sophisticated legal doctrines that must be ‘baked into the cake’ from initial filing. This is where having a patent attorney with years of experience becomes essential; they know how to position your invention to overcome obviousness rejections that would stop DIY applications in their tracks. This calibration develops only through years of battling Patent Office bureaucrats across multiple technology areas—something DIY inventors and novice attorneys simply cannot replicate.
5. Filing the Application
Once the application is drafted and reviewed, it’s time to file it with the appropriate patent office. For protection in the U.S. only, you file at the USPTO (electronically via EFS-Web or the newer Patent Center).
Suppose you seek to obtain a patent for an invention or protection internationally. In that case, you have a few routes: you could file directly in each country/region of interest, or you can file an international application under the Patent Cooperation Treaty (PCT). The PCT allows you to file a single application designating multiple countries, and then approximately 18–30 months later, you enter the “national phase” in the specific countries you wish to target. Over 270,000 PCT applications are filed worldwide each year.
When filing, ensure that all required parts are included and pay the applicable filing fees. You’ll get an official filing receipt with a patent application number and filing date, and you can now label your invention as “Patent Pending.”
6. Patent Examination (Prosecution)
After filing, there is typically a wait before examination starts. On average, a first office action from the USPTO takes around 16–20 months (19.9 months in FY2024). The average time to obtain a patent (pendency) is approximately 23–24 months, according to recent statistics, but this can vary significantly by technology area. Before even reaching this stage, conducting a prior art search is a crucial first step in the patenting process.
The USPTO had a backlog of over 800,000 unexamined applications in 2024, though it’s working to reduce it by hiring more examiners. There are options to expedite (such as Track One prioritized examination for an additional fee).
When your application is taken up, an examiner will review it and, almost always, issue an Office Action—a written notification of objections and rejections. It’s common to receive rejections on the first examination; in fact, roughly 90% or more of applications receive at least one rejection. Don’t panic—this is part of the process.
The difference between success and failure often comes down to how these rejections are handled. Experienced patent attorneys know how to craft responses that address examiner concerns while maintaining a broad claim scope. The most common rejection ground is obviousness—determining whether your invention would have been obvious requires calibration that comes only from years of experience. DIY inventors and novice attorneys often lack this critical calibration, leading to abandoned applications or weak patents that fail to deter competitors.
You (with your attorney) then have an opportunity to respond. You typically have 3 months (extendable to 6 with fees) to reply to an Office Action. In the response, you can amend the claims and/or argue against the examiner’s rejections. This back-and-forth is called patent prosecution.
7. Patent Grant
If the examiner is satisfied, you will receive a Notice of Allowance. At that point, you pay the issue fee, and the USPTO will issue the patent, typically within a few months. The patent grant is published with a patent number and is enforceable from that point.
A U.S. utility patent lasts 20 years from the date of its effective filing. You must pay maintenance fees at 3.5, 7.5, and 11.5 years to keep it active (fees increase at each stage; for example, for large entities, the current fees are around $2k, $4k, and $8k, respectively). If you fail to pay, the patent expires.
Design patents (for ornamental designs) last 15 years from issuance and have no maintenance fees.
Once granted, you can enforce the patent against infringers (unauthorized making, using, selling, or importing of the patented invention). Many inventors think the patent office polices infringement—it doesn’t. Enforcement is typically the responsibility of the patent owner through civil litigation. This is why patent quality matters: a patent is only as valuable as its ability to withstand legal scrutiny when challenged.
8. International Steps (if applicable)
If you filed via PCT or foreign applications, those will undergo their own examinations in those jurisdictions. The U.S. process doesn’t grant foreign patents, but work done (such as prior art cited) can be leveraged.
Managing a global patent portfolio can become complex, so companies often use local patent firms in each region, with a lead attorney coordinating them.
Final Considerations
The patent-pending period (from filing until grant) is an uncertain time—you have some deterrent effect with ‘patent pending,’ but no enforceable rights yet. However, the quality of your pending application determines whether you’ll emerge with a strong patent that deters competitors or a weak one that shows them how to work around your innovation. Once you have the patent, if the invention is commercially essential and the patent is well-engineered, the effort pays off as you have a 20-year monopoly.
Timeline Summary
Idea → (optional provisional application) → non-provisional filing (Day 0) → publication of application (18 months from priority) → first Office Action (~16-20 months) → response (3-6 months) → maybe another Office Action (6-12 months later) → response → allowance (~2-3 years from filing if successful) → issue (~3 months after paying issue fee). So 2-4 years is typical to get a patent.
Cost Considerations
Filing a patent application represents a strategic investment in your innovation’s future. While USPTO filing fees range from a few hundred dollars depending on entity size, the critical investment is in quality legal preparation. Attorney fees for preparing a comprehensive patent application typically range from several thousand dollars for straightforward inventions to more for complex technologies. This investment pays dividends by establishing proper protection from the start. Saving money upfront on legal fees often leads to wasting far more time and money pursuing inadequate protection or getting no patent at all.
Thompson Patent Law’s 94% allowance rate demonstrates that experienced patent prosecution, combined with proprietary Litigation Quality Patent® services, consistently delivers stronger protection than DIY approaches or protection offered by inexperienced counsel. The difference between a well-crafted application and a poorly drafted one can mean the difference between a patent that deters competitors and one that provides them a roadmap to work around your innovation. Weak patents don’t just fail—they actively help your competitors beat you to market faster and cheaper.
This investment in quality legal representation typically pays for itself many times over by avoiding failed applications, enabling better licensing opportunities, and creating patents that deter rather than guide competitors. The difference between a well-engineered patent and a weak one often determines whether you maintain market control or watch competitors capture opportunities that should have been yours.
Resources
The USPTO offers pro se assistance, pro bono programs, and training sessions, such as the Inventor Assistance Center. There are also frequent law school clinics and inventor groups that provide guidance.
Your Next Steps to Patent Application Success
Understanding who can apply for a patent is just the beginning. The real challenge lies in ensuring that your application—whether filed by an individual inventor, joint inventors, or a corporation—results in strong, enforceable patent protection that serves your business goals.
The bottom line: Weak patents help competitors design around your innovation faster and cheaper, while strong patents deter them from even trying. Achieving this requires experienced patent prosecution, backed by proprietary Litigation Quality Patent® services that transform good inventions into powerful legal assets. DIY inventors and novice attorneys lack the calibration and sophisticated methodologies that come from years of battling Patent Office bureaucrats across multiple technology areas.
The business consequences of poor patent decisions are severe: lost revenue, diminished market share, and loss of control over how your innovations get monetized. Your competitors aren’t hesitating—they’re already working on similar ideas in today’s first-to-file system. Every day you delay or pursue inadequate protection gives them more opportunity to capture the market position that should be yours.
Take these immediate action steps:
- Schedule a Free Patent Needs Assessment to evaluate who in your organization should be named as inventors, verify ownership documentation is bulletproof, and develop a strategic filing approach that maximizes protection while managing costs.
- Review all employment and contractor agreements to ensure they use “hereby assign” language (not “agree to assign”) and cover all inventions within your business scope.
- Document all inventive contributions clearly with dates and details to establish proper inventorship before filing.
- When working with co-inventors across multiple organizations, establish written agreements that outline ownership, licensing rights, and commercialization responsibilities.
- Consult with qualified patent counsel experienced with Fortune 500 companies (like Apple, Google, Intel, and Microsoft) to ensure your application meets the highest standards from the start and is engineered to withstand competitive scrutiny.
Whether you’re an individual inventor, startup founder, or corporate IP manager, proper patent preparation is an investment in market dominance. The companies that succeed long-term are those that secure strong patents early, not those that cut corners on legal costs and end up with weak protection—or no protection at all.
The quality of your invention matters, but the quality of your preparation determines whether you capture its value. Experienced legal counsel engineers patents that withstand scrutiny in litigation, pass investor due diligence, command licensing respect, and deter competitors from infringing. This requires technical expertise, legal mastery, prosecution experience, and business acumen—capabilities that develop over years of practice, not overnight.
Don’t let your competitors use your innovations as a roadmap to beat you to market. Strategic, well-engineered Litigation Quality Patent® services ensure that whoever applies for your patent—individual inventor, joint inventors, or corporation—the result is a defensive asset that protects your market position for the full 20-year patent term.
Conclusion
Applying for a patent requires strategic planning, rigorous preparation, and persistence throughout the prosecution process. Whether you’re an individual inventor, part of a research team, or representing a corporation, understanding who can apply—and how to do it correctly—is fundamental to protecting your innovations.
