The right patent on the right idea is extremely valuable. It gives you the exclusive right to make, use, sell, or import your patented invention. You can monetize it in numerous ways, such as by licensing the right to use your invention to other companies for passive royalty income. A patent is the only way to collect royalties or lost profits from knock-offs who steal your invention.
Given the immense value of a patent, getting one can be a complex and challenging process. It takes a lot of work, time, and money. You also have to have an idea that is suitable to be patented. But if you get a competent patent on the right idea, it can be the key that unlocks a fortune well worth all the investment it took to get there.
The process from idea to patent has to be approached step by step. Each step creates the right conditions for the next step – or tells you that you have to take a step back to avoid costly mistakes. So let’s take a look at the first steps in getting a patent.
The Very First Step on the Way to a Patent
The first step on your path to a patent involves really understanding your invention. What exactly makes it new and useful as well as different from anything comparable that might already exist? Would there be another way to make it work? In fact, you should explore multiple variations of your idea. It will help you later to prepare your patent submission.
In order to qualify for a patent, an invention must be unique. It cannot be just an obvious variation of something else, patented or not. Among other requirements, you generally also need to be the first person who applied for a patent for this or any closely similar invention, as we’ll discuss in the next section.
Keep a Record of the Entire Process
I am often asked if mailing a description of the invention to yourself is a good idea. No, that is no longer true. What will be a helpful first step is to collect a documentation package in paper or electronic files. Collect sketches, design documents, photographs, write-ups, experimental data, research notes, and any publications you have reviewed into a folder. When you meet to reveal this information, we call this your “Invention Disclosure.”
In addition to key facts about your technology, other legal and business concerns (e.g., deadlines, ownership, inventorship) are always important to clarify before you consider filing for a patent. You will want to have a handle on any dates of when you conceived of your invention(s). If you have co-inventors, it may be critically important to recount who contributed what features. If you have worked with a manufacturer to procure any part of your invention, the particulars of that transaction, or any other potential sale of your invention, should be recorded in your Invention Disclosure notes.
Of course, you will want to have handled all the “trade secrecy” aspects of your invention properly in order to get a valuable patent. When, how and to whom you have disclosed your invention(s) can alter your patent strategies. In general, the more people who know about your idea, the fewer and more urgent your options to protect your idea become.
Make Sure Your invention Is Eligible for a Patent
The next step is to make sure that your invention is actually eligible for a patent. You can find the complete requirements at the United States Patent and Trademark Office (USPTO).
To qualify for a patent, your idea must be useful, new and non-obvious. Whether your invention is patentable is almost always determined by the very complex legal concept of obviousness. Without years of daily patent experience and proper analytical frameworks, even the most intelligent engineers and other experts in their fields wildly over-estimate, or under-estimate, what is, or is not, legally patentable.
Despite what you may have heard, you may indeed be able to simply combine two ideas that already exist– if that combination is not obvious.
So your biggest challenge at this point is to scour the patent and non-patent literature databases for any evidence that your invention may be a legally obvious combination of two or more ideas that are already in the public domain. This is a step where a good patent lawyer is absolutely indispensable. Your search should span patent and non-patent literature anywhere in the world.
Eliminate ineligible inventions. You cannot patent nature, so you cannot directly patent a complex mathematical formula that wouldn’t have a real-world application. You also cannot patent natural discoveries, such as a new animal you may have found while scuba diving or hiking in the forest.
But you can, and we regularly do, patent software used to implement new and non-obvious algorithms or method steps in your business!!
The Type of Patent to Choose
There are two major types of patents. The first one, the utility patent, is the most common one. In fact, the vast majority of all issued patents are utility patents. They are the classic inventions of processes, machines, tools, and so on that are functional. The utility patent protects how the invention works.
The second major type is a design patent. In order to qualify for a design patent, the inventive design object must have ornamental surface features that are not merely functional. This kind of patent protects how an object looks. In fact, a design patent protects non-functional “look and feel” aspects in a way that is more like a trademark than like a conventional utility patent.
Create a Prototype
As part of the submission requirements, you do NOT need to create a model or a prototype of your invention before you submit the paperwork. Although many inventors do assemble some sort of prototype before filing a patent application, a competent patent filing requires only that you properly describe, to a person of ordinary skill in the art, how to make and use your invention.
We encourage our inventors to take steps to aggressively commercialize immediately after filing the patent. A prototype can help you raise investment, for example. There are many benefits to having your code or other proof of concept put together, but they are not a prerequisite to get your idea “patent pending.”
Apply for a Provisional Patent
In around 90% of cases, entrepreneurs and startups are best served by quickly and informally getting patent pending status on functional inventions. The reliable tool to accomplish this is called a provisional patent application.
A provisional patent application cost-effectively speeds along the process of protecting your invention and securing your place in line, just in case someone else might be working on a similar project. The provisional gives you up to one year’s worth of protection while you can fine tune your invention. With only minimal exaggeration, only every entrepreneur we have worked with improves and evolves their idea during this year.
You secure your place in line and get immediate “patent pending” status on the same day your application is filed. During that year, you can lawfully use the label “patent pending” to let others know you are protecting your invention. Just know that if you don’t follow up with your official application before the year is up, you lose that protection and you’ll have to start all over again.
In contrast with functional (utility) inventions, non-functional ornamental designs cannot use a provisional application. So if you have a non-functional ornamental design you wish to protect, you can directly file for a design patent.
How a Patent Attorney Can Help You
As you can begin to see, even getting ready to file for a patent is a complex mine field with many moving parts. It is very difficult for non-professionals to avoid critical mistakes that will torpedo future profit potential. Like landing a plane with no fuel or performing emergency surgery, you get one chance to get it right. A serious invention is not a DIY project.
If your patent has the potential to make you a lot of money (and it should if you’re pursuing it), you should hire an experienced patent attorney to help you throughout the application process and beyond.
Even the US Patent Office strongly encourages inventors to always seek the counsel from a registered patent practitioner to prepare and file a patent application. (https://www.uspto.gov/patents/basics/using-legal-services/pro-se-assistance-program)
From patent searches to helping you with licensing agreements that maximize your income, we have the experience. We have helped well over 500 hundred companies convert their ideas into assets that are engineered to produce income. As we like to say, we help entrepreneurs achieve Litigation Quality Patents.
If you’re ready to make the most of converting your invention into income,, call us or email us with any questions you may have and to get a free case evaluation. We will be happy to help you.