Getting a patent is the first thing you should do to exert your rights over a product you have created or discovered. You can get patents for your ideas securing product sole authorship and restricting unsolicited use by unauthorized parties. This, however, requires a specific process, which is often lengthy, time-consuming & quite difficult.
In the USA, the United States Patent & Trademark Office or USPTO is responsible for authorizing a patent for products & individual properties and securing them under individual property rights. So, to get a patent in the USA, you will need to follow a thorough process in line with the USPTO requirements and regulations.
This complete guide will not only help you understand how to get a patent but also provide you with all the basic information you need to know about patents, including types, importance, costs, time, and process.
The official website of USPTO defines a patent as "the grant of a property right to the inventor." As such, the patent for a product indicates the right conferred on the original author/inventor to exclude others from selling, using, or marketing an invention. The patent, however, does not grant the right to innovate, sell, or use the invention.
Generally, a patent on a product in the U.S. lasts about 20 years from when the patent was filed in the U.S. In some special cases, the term of the patent can be considered from the date an earlier patent application was filed. Nevertheless, the term of the patent depends on the maintenance fees and their payments.
Needless to say, a patent issued by the USPTO is only effective within the United States, U.S. territories, and U.S. possessions. Also, even though a patent is issued by the USPTO, the United States Patent & Trademark Office does not hold any responsibility to enforce the patent. The patentee must take full responsibility once the grant has been successfully issued.
There are three types of patents in the USA, with each type of patent corresponding to certain types of inventions and intellectual properties. The different types of patents in the U.S. include the following:
Utility Patents are patents for products that are newly invented or discovered. These patents are granted to inventors of "new and useful processes, the machine, article of manufacture, compositions of matters, or any new useful improvement thereof," as put forward by the official USPTO website.
Design patents are patents granted to the authors of new and original designs for articles of manufacture.
Plant patents are granted to anyone who invents or discovers a new plant species or succeeds in asexually reproducing a completely distinct variety of plants.
As explained above, patents grant the original inventors the right to restrict further use & copying of their inventions. As such, patenting your products, ideas, or inventions can help you safeguard them legally. To put it more simply, you need a patent to protect your intellectual property.
Individual property rights are the rights a person has over their original creations, more specifically, the creations that are the products of their own mind. Ideas, technological inventions, artistic & literary creations, etc., are subject to the original creator's intellectual property as they are the products of their intelligence & intellectuality. Even a tangible product created through the intellect of a person can be protected with intellectual property rights. In fact, the three types of patents discussed above all protect intellectual creations and individual property rights to some extent.
Thus, by getting a patent, you can exert your right over the product or idea as the original author and prevent anyone else from utilizing the product or idea in any way. If anyone else uses, makes, sells, or imports your patented invention without your permission, you can take legal action against them. You can also license your patented product or idea for some specific use or to some specific parties, or to no one at all. Using your patented product in any way outside the license and without your permission can entail the same legal action.
According to the official website of USPTO, the Traditional Total Pendency is 23 months on average, as per 2021 data. The term 'pendency' here refers to the filed application for a patent awaiting a decision. The Traditional Total Pendency, thus, indicates the total amount of time required for the patent to be successfully issued. This time is counted from the date when the application for the patent has been filed to the date when the application has reached its final disposition, i.e., either issued or abandoned.
The overall pendency can increase or decrease depending on the time consumed in awaiting action from the USPTO as well as the time consumed in awaiting action from the applicant.
Patent filing costs in the U.S. can vary depending on the type of patent you are applying for, the duration of the term, and so on. Alongside the patent filing cost, the application fee further includes the patent search fee, patent examination fee, patent post-allowance fee, fee for a time extension, maintenance fee, etc.
The patent filing cost in the USA is subject to a basic fee and additional fees, which can be increased depending on type & term and can be reduced by establishing small entity status & micro entity status.
For instance, the basic filing fee for a utility patent is $320, the small entity fee is $160, and the micro entity fee is $80. The basic filing fee for a design patent is $220, the small entity fee is $110, and the micro entity fee is $55. The basic filing fee for a plant patent is also the same.
All types of patent fees must be paid to the USPTO in U.S. dollars. However, USPTO accepts a wide range of payment methods, as discussed in detail below.
The following payment methods are accepted by the USPTO for patent filing and related fees. They do not accept payments in cash, electronic currency, or through PayPal.
Now that we have covered all the basics about getting a patent in the U.S., it is time to jump to the 'how to' part. Even though the entire process of filing, applying & waiting can seem extremely time-consuming & stressful, getting a patent can be much easier than expected if done the right way. To ensure that, we have provided a step-by-step process guide on getting a patent in the U.S.
Step 1: Determine what type of Intellectual Property protection you need for your invention
There are different types of Intellectual Property protections that you may seek to protect your invention, product, or idea. You can choose a patent, copyright, trademark, or something similar. Each of these protections offers a different level of the personal right to the inventor, subject to licensed and unlicensed use in many cases. So, the first step in getting a patent in the U.S. is to understand if you really need a patent to protect your invention or something else.
Step 2: Make sure that your invention is patentable
Not everything can be patented. For example, if your invention or idea has already been publicly disclosed, it doesn't qualify for a patent grant in the U.S. That is why you need to thoroughly search all the publicly disclosed inventions available to date. Not only that, you may need to check if your idea is already patented or not. So, a search of foreign patents and printed publications is also important to determine that your intellectual property is patentable.
However, conducting a thorough patent search needs experience as well as resources. Suppose you feel like you are not experienced enough or do not have the necessary resources to conduct a thorough patent search. In that case, you should consult a registered attorney or patent search agent.
While you can conduct a patent search all by yourself, it is highly recommended to let a registered attorney do it for optimum effectiveness.
Step 3: Determine what kind of patent you need
In this step, you determine the specific type of patent that you need to apply for. As discussed earlier, there are three different types of patents in the U.S.: utility, design, and plant, each representing different types of intellectual properties. So, you need to identify the type of intellectual property you want to patent and choose the type of patent that goes with it.
For instance, if you have discovered a new plant species and want to patent it, you need a plant patent. Similarly, if you want to patent your original design, the design patent is the type of patent you need. On the other hand, you can go for a utility patent if you want to patent a new technological product, a newly invented machine, or something similar.
Step 4: Get ready for your patent application
Once you have decided on the type of patent you need, it is time to prepare for your application process. The very first thing you need is a sound application strategy, which will prepare you for filing as well as for conducting the proceedings before your patent grant is authorized. For this, using professional legal services is highly recommended.
While you can do the filing and take part in proceedings all by yourself, things may get quite difficult if you do not have the proper knowledge and experience dealing with patent laws and procedures. Consulting professionals like patent attorneys and patent agents, on the other hand, will help you navigate the patent laws and rules and enable you to apply for the patent grant successfully with much less effort on your part.
Step 5: Prepare and submit your initial application
Before submitting your patent application, make sure that you have fulfilled all its specifications and claims properly. With a sound application strategy in place, you can start obtaining all the required details and documents as per the USPTO regulations. Now prepare your application by including all the necessary information and get it ready for filing on the specific date and with the correct fees.
Step 6: Work with your examiner
In case your application is found incomplete, then you will be duly notified by the USPTO through an official letter. This part is known as Office Action. Office Actions demands that you complete your application with the missing details within a predefined period of time and with the necessary additional charges that may incur.
If you fail to fulfil the Office Action within the set period of time, then your patent application will either be returned or disposed of. However, you will get back your filing fee, except for the handling fee.
If your application is accepted as complete, then it will be assigned for examination by the USPTO. You will get an examiner who will review the contents of your patent application and ensure that it meets all the requirements & regulations. In case your examiner doesn’t find it up to the standard, it will be explained to you accordingly so that you get the chance to make amendments or to put forward your argument.
Once again, if you fail to respond to the examiner’s objection within the defined time, your patent application will be disposed of.
However, if you have chosen a legal professional to represent you, then USPTO will communicate directly with your legal representation after the initial filing for the patent. In such a situation, not you but your chosen legal representative will be responsible for meeting the deadlines and communicating with the examiner.
Step 7: Receive your application approval
Once your examiner decides that your application meets all the requirements satisfactorily, the USPTO will send you a Notice of Allowance. The notice will inform you or your legal representative (if any) about the issue fee. It can also include the publication fee that must be paid before the patent grant is finally issued.
After the USPTO has processed the issue fee, a patent number and an issue date will be notified to you, informing you when you will receive the patent grant. The patent grant, including the inventor(s)' name, specifications of the invention, claims, and references to any previous patents, will be finally mailed to you or your legal representative on the said date.
Step 8: Maintain your patent after the grant is issued
After the specific term has ended, your patent will stop being in force. For example, if your patent was for 12 years, then it will stop being in force after 12 years from the date of issue. You may need to reissue your patent if you want to continue using your patent rights. For this, you will need to pay a maintenance fee as per requirements. If you fail to pay the maintenance fees and the necessarily applicable surcharges on time, your patent will expire, and you will lose your rights over your individual property.
Getting a patent in the U.S. on your original product, idea, or invention is a time-consuming process that needs patience, expertise, and commitment. You will need to be continually in touch with the USPTO throughout the process, from filing your patent application to maintenance. Not only that, you will need to meet all the deadlines and respond to all the notices sent by USPTO and your examiner in a timely manner. Even though you can do this on your own, focusing your time & effort over months and years will only compromise your time over your other commitments. Hence, it is a smarter choice to consult a patent attorney or an agent. They have the necessary expertise and experience regarding the patent processes in the U.S. and will take complete responsibility for acquiring your patent grant from patent search, patent application filing, maintenance, and so on.