Patent Eligibility

Calendar Icon Updated January 15, 2019

Inventors looking to protect their rights to an invention should file for a U.S. patent with the United States Patent and Trademark Office (USPTO). Patents give inventors the right to protect their invention from being made, used or sold in the U.S. Getting a patent approved takes about two to three years and costs roughly $1,500 in fees, not including legal costs.

Any inventor can apply for a patent, regardless of age, citizenship, etc. Patents are only granted to the original inventor or a joint inventor, legal representative of an incapacitated inventor, legal representative of a deceased inventor, or individual assigned the invention by the original inventor. There are three types of patents granted in the U.S. — utility patents, design patents and plant patents.

New and significant inventions are granted patents. When determining whether or not your invention is patentable, start with these questions:

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  • Is it useful?
  • Is it or its purpose legal?
  • Is it different?
  • Can it be explained?

Inventors should conduct a through research to ensure their invention does not already exist before pursuing a patent, which takes a significant amount of time and money to do.

Most inventors begin the process by filing a provisional patent application, which protects your intellectual property more quickly than a regular patent. Once a provisional patent application is filed, you can claim your invention as “patent pending.” You are required to file a regular patent application within one year of filing the provisional application.

Patent applications consist of extreme detail regarding your invention. This information is submitted in the form of narratives, drawings, schematics, claim statements, etc. Ideas that cannot be described at every detail and every level are not likely to be granted a patent. The invention must be explained in a way to another industry professional would reasonable be able to use or manufacture the invention based on the information in the patent application.

Since such great detail is required, inventors pursuing patents are encouraged to enlist the help of a patent attorney when filing his or her application. The USPTO’s Inventors Assistance Center (IAC) also offers free assistance for inventors wanting to file for a patent.

What is a U.S. Patent?

A U.S. patent grant is a type of intellectual property protection that grants full property rights of an invention to its inventor. Patents grant the inventor rights to keep others from making, using or selling their invention in the U.S. Patents, administered by United States Patent and Trademark Office (USPTO), are generally valid for 20 years from the date the patent application is filed.

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I acknowledge and understand that by submitting this Contact Request form through clicking "Check Eligibility!", I provide my express consent to the following: (1) That I am bound by LLC’s Privacy Policy and Terms of Use; (2) That I am not required to submit this form, and thereby agree to all terms located herein, as a condition to receive any property, goods, or services that may be offered, and that I may revoke my consent at any time.

Once an inventor obtains a patent, he/she is responsible for enforcing that patent if it is broken. U.S. patent grants are only valid in the U.S. Inventors who want to protect their inventions in other countries should file patents with those territories as well.

Citizens and non-citizens of any age are eligible to apply for a patent. The only condition is that the original inventor must be the one who files. These individuals, who are not the original inventor, are also permitted to file the patent:

  • Joint inventor
  • Legal representative of an incapacitated inventor
  • Legal representative of a deceased inventor
  • Individual who has been assigned the invention by the original inventor

Patents are granted for the invention or discovery of a new and useful process, machine, manufacture (something made), or composition of matter (chemical compounds or mixture of ingredients). A new and significant improvement to a process, machine, manufacture or composition of matter that already exists is also patentable.

Patents are granted for new and unique ideas. If something similar exists, you will not likely be granted a patent if one has already been granted for a similar idea.

Ask yourself these questions to help you determine if your invention is likely to qualify for a patent:

  • Is your invention naturally occurring or abstract? A law of nature, natural phenomenon or abstract idea is not patentable.
  • Is it an artistic work? Literary, dramatic, musical and artistic works can be copyrighted but not patented.
  • Is it useful? The invention must serve a purpose and operate successfully.
  • Is it legal? Inventions used for or leading to illegal acts are not patentable.
  • Does it already exist? Inventions that have been known, in use, documented in a printed publication, or previously patented by someone else are not eligible for a patent.
  • Is it different? The invention must be significant and surprising to be patentable. You can patent a new type of the same product, but it must be significantly different than the original version. For example, a person could reinvent the wheel, but the new wheel must be different enough to be considered unique from the original design in order to be patentable.
  • Can it be explained? Every aspect of an invention must be described to obtain a patent. Big picture concepts or ideas are not enough. An inventor must be able to describe every detail of his or her invention in a way that others in the same field are able to understand the invention and make and/or use it themselves.

When determining whether your invention already exists, it’s a good idea to conduct some in-depth research to ensure your invention is in fact a new idea. If something similar to your idea already exists, especially if it its patented, you may end up spending tons of wasted time and money applying for a patent that will never be granted. Determine whether your invention is unique enough to qualify for its own patent before pursuing one by doing a USPTO patent search. Visit this webiste and use keywords to search for inventions similar to yours.

The U.S. grants three types of patents. Before applying for a patent, determine which category your invention falls into:

  • Utility patents (most common): new process, machine, manufactured item, or makeup of matter
  • Design patents: new design for a manufactured article
  • Plant patents: invented or discovered new variety of plant bred through scientific engineering

Should I File a Provisional Patent?

Inventors should consider filing a provisional patent application before starting the regular patent application process. The provisional process is faster and less expensive ($65-$260) than a regular patent application, protects the invention for one year and allows you to claim the product as “patent pending.” Only a description and basic drawings are needed to file. You will be required to apply for a regular patent within one year of filing a provisional patent application.

How to Apply for a Patent

Once you are confident that your idea is patentable, it’s time to begin the application process.

Regular patents require the inventor to formalize the inventions manufacturing process, establish its novelty, and describe exactly what elements of the invention should be patented. The application goes through a rigorous examination by the USPTO before being accepted. The complete process usually takes two to three years.

Your application needs to include as much detail as possible, including technical descriptions, explanation of usefulness as well as drawings and schematics. You will also attach a “specification attachment,” which includes a narrative description of the invention, its purpose, how it’s assembled and how it works along with an abstract and series of claim statements. A signed oath noting the invention’s creator also needs to be included.

Complete applications can be filed online with the USPTO. Applications are also accepted via mail, but cost more to file than online applications — $200 or $400 more depending on the size of the entity filing. You can expect to pay roughly $1,500 in fees to obtain a patent. This does not include attorney’s fees.

What is the Process of Filing a Patent?

Filing a patent application is a big task. Depending on your comfort level with the process, you may want to enlist professional help. There are a variety of options available:

Patent Attorneys

Patent attorneys can help you with your patent search to make sure filing your patent goes as smoothly as possible a has the most chance for success. Once it’s determined that your invention is in fact unique and patentable, an attorney will guide you through the process to increase the chances of your patent application being approved by the USPTO. Attorneys are familiar with the process and level of detail needed in the description of your invention, which is where inventors often fall short in their applications. Having an expert on your side can help the process operate efficiently the first time around.

Law School Patent Clinics

Many law schools offer no cost services for inventors from student lawyers in patent clinics, offering an affordable way to get legal advice regarding your patent application. If you use a student clinic, it’s important to research the process thoroughly yourself as well since this may be the first time your student advisor is experiencing the patent process as well.

Inventors Assistance Center (IAC)

Professionals familiar with the patent process are available to assist the public through the Inventors Assistance Center (IAC). The IAC can be reached toll free at (800) 786-9199.

The IAC can assist with general questions about the patent application process and required paperwork and formatting, filling out forms, referring you to appropriate office contacts and resources and providing general information. The center cannot give personal opinions or legal advice, conduct a patent search or fill out forms for you.

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