When it comes to patenting an invention in the United States, the process can seem daunting. In the accompanying video, we zoom through the essentials in under a minute—much faster than the real-life timeline. Below, we break down each step so you can understand what it takes to transform a simple idea into a fully issued patent.
1. From Idea to Invention
- Ideas Aren’t Patentable
In U.S. patent law, a mere idea can’t be patented. You must reduce your idea to an “invention”— something that you are able to describe in a way that someone skilled in the relevant field could actually make or use. As an example “my idea is that it would be cool if there was a way to project a straight, level line on a wall when hanging a photo” is not patentable. A description of a laser level that implements the idea would be patentable (except it already exists…). - Documentation
Once you have a workable invention, it’s important to document it thoroughly. You might create a formal inventor’s disclosure if you’re working with a patent attorney, or you might draft detailed notes and diagrams yourself. The key is to clearly describe how to replicate your invention.
2. Filing the Application
- Provisional Patent Application
A provisional application is a relatively informal filing that secures an early filing date. You’ll still have to file a formal (utility) application within one year to maintain that date. - Utility Patent Application
The utility application must include:- Specification (Detailed Description): Explains exactly how to make and use the invention.
- Claims: These define the legal boundaries of what you want to protect. Once granted, your claims determine what others cannot do without your permission. Think of it as analogous to a deed for property. Anything that falls within the claims is “trespassing” on “land”, but you have no claim against anything not on your “land”.
3. Working with the Patent Office
- Examination Period
After filing a utility patent application, you enter the examination phase. An examiner at the U.S. Patent and Trademark Office (USPTO) will review your application to ensure it meets legal requirements (such as novelty and non-obviousness). This can involve “office actions” where the examiner raises objections or rejections. Note that you can expect to get a “101” rejection in many cases. Section 101 is textually very generous as to what is patent-eligible, but a series of court decisions have imported non-textual limitations that have turned it into a bar even for inventions that cost billions of dollars to develop. I could write a book on this topic and still not cover it fully (and the book would probably be outdated 48 hours after I wrote it). My advice is to work closely with a lawyer with a strong understanding of 101 jurisprudence. As an aside, I’ve done patent examiner interviews where I’ve bonded with the examiner over our mutual confusion about how 101 applies in a particular case. The Supreme Court will eventually have to clarify the limits, but until it does there will be a lot of guessing, even by the most experienced lawyers. - Timeline
Although the video jokingly mentions “maybe six years,” the actual timeline can vary widely. It may take a few years—or sometimes longer—to navigate the back-and-forth with the patent examiner and reach an allowance or final rejection. There is also the option to expedite prosecution by paying for a “Track 1” examination. However, beware of how that impacts cash flow. I once filed numerous Track 1 applications on the same day, and ended up having to respond to numerous office actions about six months later. It wasn’t cheap.
4. Getting the Issued Patent
- Allowance and Issuance
If the examiner concludes that the application meets all criteria, you receive a notice of allowance. After paying the issue fee, the USPTO formally grants your patent. This “issued patent” gives you the right, for a limited term (generally 20 years from your filing date of your first utility application, but not the provisional), to exclude others from making, using, selling, or importing the claimed invention in the United States. As a practical matter, after eBay v. MercExchange, the “right to exclude” has morphed into a “right to demand license fees”, as after that case, an injunction is as unusual as seeing a zebra in Central Park. U.S. Inventor is working to strengthen the patent system.
Want More Details?
If you’d like to see this overview in action, be sure to watch the accompanying video. It’s a fun, rapid-fire summary of the entire patent process—start to finish.