How to Patent an Idea

Sorry, you can’t.

You can’t patent just “an idea.” It isn’t allowed by the law.   Patents are granted only for things, processes, machines, manufactured articles, inventions.  Abstract ideas and theories, alone, cannot be patented.  Recent Supreme Court law just reaffirmed this.   Generally, you have to work up with something a bit more developed than just an idea to get a patent.

Let’s say you’ve taken your idea and made a prototype – now you’ve got something which you might be able to patent.  Attorneys would probably disagree on the first step to take.  Some might say to document it in an inventor’s notebook.   Some might say to work on it and develop it.  Hopefully none tell you to write about in a letter in and mail it to yourself.  I advise that you speak with an attorney once you are reasonably close to a “finished” product.   That may only take three prototypes, or it might take three hundred.  Once you’ve got something you think is truly different, truly new, and nearly complete, talk to a patent attorney (unless you need help developing the invention).

Critical in you ability to get a patent is when you first disclosed it.  Above all, respect the one-year deadline: once you’ve disclosed your invention to a person or people who have no obligation to keep it secret, you’ve only got one year to patent it in this country.   After that, you lose the right forever.   In other countries around the world, you can lose the ability to patent it if you tell or show the invention to someone before you file a patent application.

A patent attorney may suggest a few things when you first talk to him or her.  They should listen to what you’ve come up with, take a look at it, hear what your ultimate plans and goals are, and discuss your options.   Some may recommend a provisional application – a sort of place-holder that can have advantageous early-filing benefits.   Some may recommend you go ahead with a full utility patent application.   Others may suggest you perform a patent search first to determine whether your invention has been invented or described before, in which case it might not be eligible for a patent.

If you proceed with a patent application, please find an attorney to draft the application.   Just as you would want a plumber to move your toilet lines from one side of the bathroom to the other, or a cardiologist to perform your bypass (unfortunate pairing of examples), you want a patent attorney to write the patent application.   Doing it yourself can render your invention worthless.   There are many rules that have to be followed, many court cases that inform how a patent application is read and construed, and a patent attorney will be aware of these and use them when drafting the application.

The patent attorney will work closely with you before filing the application.   You’ll talk with him or her often, describing the invention and its possible variations.   Once the application is ready, you’ll have to sign some papers verifying the contents and veracity of the application and acknowledging the duties you have to the Patent Office once the application is filed.  The application is then filed along with a set of fees paid to the Patent Office.   Then begins the waiting game.

The Patent Office is extremely backlogged – it takes, on average, two to four years before the Patent Office sends a first response to you.   When it does respond, it will either allow your application or it will make rejections and objections that point out problems.  You can then abandon the application or make changes and send them back in response.  If you continue with the application, the Patent Office will send a second response.   Sometimes, at this point, you may continue arguing against the Patent Office’s rejections.   Sometimes though, it is more worthwhile to just let the application die.   Hopefully, your application will be approved and then issue as a patent.   You’ll have to pay another fee – an issue fee – to have your application become an official patent.

Once the patent issues, you will have to pay maintenance fees every few years to keep it alive.   During this time, you should monitor the patent to see if others are infringing it.  You might also want to market it or try to license it to competitors or companies that could use your product.  Twenty years after the effective filing date of the patent, your patent will expire. At that point, the public can start making your invention without your permission.  The twenty-year monopoly you were granted to exploit and sell your invention is your trade-off for giving the invention to the public at the end of that 20 years.

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  1. I have an idea but to make a proto type I would need a computer programmer. I am unable to do the computer programming, but the idea would be a hit and I don’t want some one to use my idea. But since you can’t paten and “idea” what do you suggest? Thank you.

    1. Hi Shonda – You face a common and difficult hurdle in the inventive process. Unfortunately, I can’t render specific advice to you, other than that you should proceed with the help of a qualified attorney. You may find that you need to enlist the services of a programmer, and possibly others, to bring your idea to reality. I recommend contacting a local patent attorney and discussing your situation. Best of luck!

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