How do you get a patent?

A patent is a legal document that provides exclusive commercialization rights for up to 20 years to the person that invents something useful, new, and non-obvious.

In exchange for what are effectively monopoly rights to that invention, the inventor is required to disclose how to make and use the invention in precise and exact terms. Key points about patents are that:

• they’re public record
• they’re technical in nature
• they verify that you invented something novel
• they generally reflect the current state of the art

How do you get a patent?

Getting a patent is an uphill slog. Patents costs $20K-$100K end-to-end (if you use a lawyer) and take between 2–5 years to issue due to the backlog of pending patents at the USPTO.

Even with the help of qualified attorneys, you can still expect to dedicate a significant amount of time to the process.

Minimum Requirements

To get a utility patent in the US, your invention must be useful, novel, and non-obvious. We wrote about these earlier (read: how to know if your invention is patent-worthy).

In a nutshell, you should be able to show that your invention:

• has a real-world use, creates some benefit, and isn’t implausible or factually misleading (useful).
• is new to the public domain and different from anything else in at least one way (novel).
• can’t be derived by someone of ordinary skill having specific motivations or expectations that compel them to try combinations or substitutions across existing prior art (non-obvious).

Patent Searching

Determining whether your invention meets the latter two (novel and non-obvious) is notoriously difficult and hinges on what comes up in an examiner’s search of the prior art.

Prior art is anything made available, or disclosed, to the public prior to the patent filing date that might be relevant to an invention. This can include:

• domestic & foreign patents (including published patent applications)
• non-patent literature (a broad term covering almost “anything else”)

Prior art comprises of hundreds of millions of documents and it’s impossible to review them all yourself.

Free search tools exist and may help you conduct your research. However, patents are written in dense, technical language and are challenging to decipher.

When identifying a patentable differentiator for your invention, be as precise and honest with yourself as possible. You may not get a perfect answer but the following questions may help you structure your thoughts:

Does your invention…

• solve a unique problem?
• fulfill a unique function or purpose?
• result in a unique outcome?
• execute a unique process?
• contain unique components?
• integrate unique techniques or methods?

Could someone have been extrinsically motivated to derive your invention by combining or substituting references for reasons that differ than yours?

Once you’ve determined that your invention meets the minimum thresholds, you’ll then need to draft a patent application.

Drafting Your Patent

Patent documents are complex, technical, and highly structured. They’re generally organized into the following sections:

• a cover page containing the title, abstract, inventor details, and list of prior art references
• specifications containing a background on the invention, instructions for how to make & use it, a detailed description of what it is, and drawings depicting it visually
• claims that precisely convey the scope and boundaries of the invention

In aggregate, your patent application needs to:

• show that you possessed the invention
• provide an adequate written description of your invention
• share a best mode of implementation
• enable someone having ordinary skill to make or use the invention without undue experimentation
• describe your invention in a definite way

Meeting each condition isn’t trivial and patent examiners follow rigorous procedures to determine compliance.

A patent attorney that is experienced in the nuances of patent drafting and patent examination and that knows your domain can help you avoid potential landmines while maximizing your chances of success.

Patent attorneys typically charge $10-$20K for drafting and dedicate around 20–40 hours to this task over 6–8 weeks.

They’ll first spend time getting to know and understand your invention, including what makes it novel and what is most important to protect. They’ll then ask for your help drafting up the background while capturing its essence in the claims, figuring out the right drawings to include, filling out the detailed description, and putting it together in a completed draft.

Once you are satisfied, you’ll submit it to USPTO.

The Examination Process

First, the USPTO will review it for completeness. Does it contain the requisite information? Is it formatted correctly? Is anything missing?

It will then be given a serial number and assigned to an “art unit” staffed by patent examiners with expertise in a specific technological area.

When the application reaches the front of the queue (usually in 12–20 months), the examiner will check that only one invention is claimed. If more than one is claimed, the examiner will limit examination to claims associated with one invention.

The examiner will then perform a search and undertake a detailed evaluation to if the claims are patentable. If all are patentable, the examiner will issue a notice of allowance. If any aren’t patentable, the examiner will issue an office action rejecting these.

Important points to know about office actions:

• The first office action is always non-final. The second is usually final.
• ~90% of applications are issued non-final rejections. Receiving one doesn’t mean you won’t get a patent — it just means that the examiner found an issue with a specific part of your application.
• Office actions typically summarize the status of each claim (rejected, objected to, or allowed) and provide details supporting any rejections or objections made.
• The office action is the best place to understand why a claim was rejected. It will cite specific sections of the Manual of Patent Examination Procedure as the basis and provide supporting evidence for how this conclusion was reached.

If you receive a non-final office action, you can argue your case for why the examiner’s conclusion is incorrect, cancel or amend claims to adopt the examiner’s recommendation, or abandon the application outright.

If you make amendments that the examiner believes raises new issues, they may issue an Advisory Action with the final rejection. You can still continue the examination process by filing a Request for Continued Examination (RCE) or a Notice of Appeal if you believe your invention should still be eligible for patent.

The Takeaway

The process is long and requirements onerous. If you choose to go down this path, prepare yourself mentally by thinking through as much of the downstream requirements as possible.