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Technology Transfer

Entrepreneur's Toolkit - Overview of the Patent Process

Idea to Patent - What to Expect

Maybe you just had your idea, or maybe you filed a patent application a year ago. Either way, you might be asking what's next? The USPTO has a pretty good page that explains the process involved in seeking, obtaining, and maintaining a patent. They divide the process into five stages or steps:

  1. Get Ready to Apply

    Remember, a patent starts as an application, and only becomes a patent after the government examines the application, determines the invention is patentable, receives all necessary fees, and grants or issues the patent. Some work up front can make the whole process go more smoothly. You'll consider whether a patent is the right type of protection and what type of patent to seek, whether your invention is patentable, whether to conduct a search to see what's been done before, what it will cost, where to seek protection, and whether to hire a patent attorney or agent to help.

  2. File an Application - Day 0

    Whether a patent agent or attorney prepares and files your application for you (recommended for most) or you prepare and file your application yourself, the patent process officially starts when a patent office receives your application. The vast majority of applications are filed electronically. From the day you file, you can start using the term "Patent Pending" with respect to the invention of your patent application. Before then, you should not have sold, disclosed, or offered your invention for sale. Now you can (finally?) begin to market your invention.

  3. Prosecute the Application - Months to Years

    Many people don't know that it can take months to years before the Patent Office even looks at your application. Then, the Patent Office conducts an examination process to determine whether to grant a patent (monopoly) for your invention. The examination process typically involves a series of communications between you (or your agent) and the Patent Office. Consider what the Patent Office says seriously, but don't be dismayed if your patent is initially rejected. The vast majority of issued patents were rejected completely at first.

  4. Receive a Patent - The End and the Beginning

    Assuming you persevere with examination and the Patent Office decides to grant your patent, the final step before issuance is payment of one more fee, the issue fee. You also typically have an additional decision to make: whether to file an additional patent application claiming priority from the soon-to-issue patent. This decision is important and allows you to seek a different scope of protection (such as to prevent new competitors). If your new application is not filed while the original application is still pending (before it issues) (called codependency), the original application becomes prior art and can prevent you from getting further patent protection.

  5. Maintain Your Patent - Not the End

    You've done it, but getting your patent is not the end. You want your protection to remain in force as long as there is value in that protection. The government knows this and thus charges occasional fees of patent owners. Failing to pay the applicable fees results in the patent protection lapsing. In the U.S., such fees for utility patents (termed "maintenance fees") are due at 3.5, 7.5, and 11.5 years after patent issuance. In most of the rest of the world, such fees (termed "annuities") are due yearly. Because patents are typically expected to increase in value, the fees increase over the years. Don't be surprised by these ongoing fees. Also, if your patent is valuable, you may face challenges to your patent's validity in court litigation or in further proceedings before the Patent Office.

  6. Enforce Your Patent - Infringement Litigation and Other Actions

    Patent rights are a right to exclude others from making, selling, offering to sell, or importing the patented invention. Those rights depend on you enforcing them against infringers. Typical mechanisms for enforcement include notifying others of your patent rights (so they can choose to not infringe), litigating infringement in federal courts, and suing at the International Trade Commission (ITC) to prevent importation. Enforcement can be expensive. Also, many enforcement efforts lead to challenges by alleged infringers to your patent's validity and enforceability. Typically, you'll want to engage attorneys to help you know how best to use your patent to stop infringement.