Do you have a valuable invention and want to know the best way to patent it? Should you use an online service, go to a lawyer, or use one of those invention assistance firms? In part 1 of this 2 part article, I covered how to make sure that your patent makes you money and the 9 most important things you should consider prior to plopping down a few thousand bucks for your patent. I highly recommend giving it a read before continuing through part 2 of this guide. I looked online for an awesome to the point patent guide for inventors but instead found that everything was either too technical, bad advice, or written by law firms and businesses trying to make money off of inventors. Patents are kind of fascinating in their own way. This 2 part guide is the best I’ve seen to learn a lot quickly, answer lots of your questions about patents, and walks you step by step through the process of getting a patent.
How Much Does a Patent Cost?
A Utility Patent averages about $9000 but cost can vary quite a bit depending on the complexity of your invention. Read on there’s more you will need to know.
What Is A Patent Really
The idea behind a patent is simple. It was created to encourage innovation. Inventors normally wouldn’t want to disclose their great ideas because someone might steal it (ahem I’m talking about you China). This discourages sharing which slows down innovation. Granting a patent gives inventors an incentive to disclose their inventions by granting them a monopoly over that invention for a period of time (usually 20 years). After that time period, anyone can use the invention and it is easier to do so because all the details are published in the patent.
The Value of a Patent
A patent does not guarantee that no one else rips off your idea or sells something extremely similar. Rather it simply gives you legal recourse if they do. This quote from a Silicon Valley patent attorney explains the distinction well:
“A patent gives you a seat at the table, both offensively and defensively. That’s it. In other words, a patent gets you some relevance and some leverage. How much relevance and leverage depends on how you play your hand and how deep your pockets are.” (1)
This highlights the importance of your patent being part of a larger business plan for your invention as discussed in part 1 of this article. You need to have funds available to defend your patent and commercialize it in some way to get a return. However, fear not independent inventor because we will cover some strategies for getting protection with minimal cash outlay in this very guide.
Have Patents Made me Rich?
While I have been awarded 14 patents and have additional pending, I have not personally grown rich from these patents alone. Most companies, as a condition of employment, claim right to all of the IP (intellectual property) that you generate while working for them using their resources and training.
I have been awarded direct bonuses for these patents to the tune of thousands of dollars and have likely been promoted and given indirect bonuses at least partially due to these patents. However, they have not made me rich directly. I have also filed patents at startups that I have been involved with and seen that value reflected in my equity. My point is that making money from patents is rarely about selling a piece of paper and more about realizing business value from inventing something. Licensing is one way to realize value but equity or entrepreneurship are others.
Patents History
The first patent ever issued was in Venice in 1416 for a cleaning and processing method for wool. This begs the question of whether the guy who invented the patent patented it :/ ? Today in the USA, if you are the first to file a previously undisclosed invention, you are eligible to patent it. Prior to 2013, it wasn’t this way. The USA gave the patent to whoever first invented the invention. This meant in the bad old days that someone could produce an old notebook from 10 years prior to your patent showing sketches and take you to court over it. Weird right? No longer. It is first to file now.
Patents are Enforced By Country
Patents are enforced by country. Filing in the USA for example only protects you there. The European Patent Organization by contrast covers all 26 countries in the EU. Requirements and laws are a little different in each country or area. Just because you are eligible for a patent in one country does not necessarily mean it will be granted elsewhere.
Types of Intellectual Property Protection
There are different types of patents and IP protection.
Utility Patent
When most people think of a patent they are thinking of a utility patent. It is for a processes, machine, article of manufacture, and/or composition of matter. It protects your invention for 20 years (USA).
Provisional Patent Application
This is not a patent but this application gives the inventor one year of some protection without review of the invention by the USPTO. It also allows you to label your product as “patent pending.” This powerful tool will be covered in the step by step guide below.
Design Patent
This is intended to protect the ornamental design of something that has practical utility. This includes the visual qualities of a manufactured item. Think the curves of a Coca Cola bottle or the design of Nike’s latest shoe (fashion design). In the USA this is a 14 year patent.
Copyright
This protects the rights of authors, artists, and content creators. It grants the author control over how their work is used for the creator’s lifetime + 70 years. So in 2079 for example I can re-make Michael Jackson’s Thriller and I won’t have to pay a dime. I hope I can still pull off that zombie dance with a walker and creaky joints.
Trademark
A word, phrase, symbol, or design that distinguishes the products or services as being from a specific source versus others. This is branding. It typically includes logos but might even include something like a specific color of a product. For example 3M has trademarked that yellow color of their sticky notes (yep really). Trademarks last for 10 years in the USA needing proof that the trademark is still being used after 5 years. However, they can be re-filed over and over as long as the brand is in use.
Trade Secret
Some companies choose to not patent their inventions at all but keep them as a “trade secret.” This provides no legal protection what so ever if the secret gets out. However, it also means no public disclosure and a chance at keeping the innovation secret beyond the 20 year period of a patent. Coca cola’s secret formula is a good example of this. Hey if one of my ingredients was cocaine I’d probably keep that secret too (ok coke no longer has cocaine in it please don’t sue me coca cola).
Patent Step By Step Guide For The Independent Inventor
If you google how to get a patent, you are bound to get pages of results from services and lawyers happy to charge you thousands of dollars out of the gate. However, consider all of your options first. Many of these companies make money off of the inexperience and excitement of novice inventors.
It is my opinion that most of those invention assistance companies that advertise on TV or online are scams and/or charge more money for less benefit than is worthwhile. I would consider using an online service for help in preparing a provisional patent application or may consider doing it myself if the invention was very straight forward to describe. However, it is also my opinion that if I got to the point of submitting a utility application, I would prefer going to a lawyer recommended by someone I trust for this. Let me explain in the following 3 step process:
Step 1 Validate Your Invention
From the time you first disclose your invention in any public way, use your invention publicly, or offer your invention for sale, you have a 12 month grace period to file for a patent application in the USA. If you wait longer than this 12 months after a disclosure, your invention may not be patentable. However, this also means that you get a whole year to do all of the things covered in part 1 of this article without spending a dime on a patent. If an unintended disclosure starts the clock ticking, you still have that year. This is a nice safety net. Use this grace period to make sure that you are not one of the 97% of patents that never recoups the cost of patenting.
There is a risk here of someone else applying for the same patent during that year and you losing your rights to the invention. As mentioned above, the USA is a first to file country. While having others sign a well written confidentiality agreement can help, some risk always remains until you file. In addition, a public disclosure before having any patent application submitted can make you ineligible to file for a patent in some other countries such as China or Europe for example. So use that grace period but when in doubt of protection, best to move to step 2.
-Here is some information on the risks of using the one year grace period.
Step 2 File a Provisional Patent Application
If I had strongly validated my invention in step 1 and was convinced that spending the $8-12K on a utility patent was going to yield a return, I may skip the provisional patent and file a utility patent directly. However, In most cases I would start with a provisional application. It has many advantages.
A provisional patent application can cost as little as $70 if you write it and submit it yourself. You simply provide detail about your invention and submit it with an application. It is not reviewed or made public by the USPTO but does hold your spot as first to file your invention for one year from when submitted. It also allows you to claim “patent pending” on your device. This means you could even go so far as to sell the device for a year with some US legal protection and court investors with a patent pending status all for $70! That is a bargain. The important piece here is to make sure that the application is complete and provides enough specific information to give you protection to your invention.
I may consider using an online service or even a lawyer to help with a provisional application but it should not cost more than a couple thousand dollars unless the invention is very complicated with many drawings and pages that need to be prepared. Legal zoom offers a provisional patent application service for about $200 online. Don’t let it lapse because if a provisional application is not followed with a utility application within one year, protection is forfeited. Here is some more great info on provisional patent applications.
–A great article about the merits of provisional patent application in Forbes.
–More information on provisional patent applications from The USTPO.
Step 3 File For a Utility Patent
If I have made it to the point where I am filing for a utility patent, I would already have clarity that the business value of the patent was going to exceed the cost. Having a utility patent can add value to your business offering regardless of whether that value is for yourself, investors, or potential licensing partners. For this reason I would want to work with a patent attorney that I trust and/or came recommended by someone I trust.
The average cost of a utility patent is around $9000 but can vary based on complexity of the invention and how much pre-work you do and provide to a lawyer. The prior art search, and the way that your claims are structured can have a big impact on the value and defensibility of your patent. In my experience, a good patent attorney is worth the price in this respect. A discussion with your attorney can provide additional protection from competitors and maybe reveal possible improvements that can be added as additional claims. Utility patent applications include lots of information. Here are some useful links:
–The USPTO Utility Patent Filing Guide
-More information about patent claims.
The Best Way To Patent Your Invention and Make Money
Inventing new things is fun and can be highly profitable. We started this series in part 1 by looking closer at some of those overnight patent millionaires and examining the importance of treating your invention like a business. Million dollar ideas are often more about the execution after that moment of inspiration than the idea itself. We looked at why most patents never recoup their costs and reviewed a handy checklist to make sure your patent is profitable
- #1 Does your idea meet the basic requirements to get a utility patent?
- #2 Is your product eligible for a patent?
- #3 Does Patenting Actually Make Sense?
- #4 Google it / Prior Art Search
- #5 Is there a market for it and who is your customer?
- #6 Is it manufacturable at scale
- #7 Can it be produced profitably
- #8 Do I have the funding available and committed to make this successful?
- #9 Do I have a good understanding of my plan and am willing to do the work?
Here in part 2, we covered what a patent really is, some history, the value of a patent, and the different kinds of intellectual property protection. We covered step by step how an individual inventor can get protection for her invention while minimizing spend along the way with a 3 step process:
- Step 1 Validate Your Invention and the Grace Period
- Step 2 File a Provisional Patent Application
- Step 3 File For a Utility Patent
This guidance has helped me to minimize spend while maximizing impact of patenting my inventions. I know it will help you as well. I love inventing new things and patents have been one ingredient in me reaching a place where having a job becomes optional in life. However, if money is your ultimate driver I encourage you to check out this page on financial independence. There may even be easier ways to reach your money goals as well.
A Disclaimer
This article is based off of patents in the USA. While I have done my best to describe patents in this article based on my own experience and recollection, I am not an attorney and make no guarantees to the accuracy of the information shared. Laws may also change over time. I advise readers to seek additional council beyond this succinct overview.
