How to protect your patent idea You've come up with a new invention, and you're ready to file a patent application

Inventors face many challenges in protecting their intellectual property (IP) in the United States. With the first-to-invent system — which means that the inventor who files for IP protection first is awarded the rights — inventors have to balance protecting their IP with keeping it secret until they are ready to disclose it publicly. 

1. How to file a patent application

If you are about to file a patent application, you might expect a lot of hurdles along the way. The process may seem complicated, but it’s actually pretty straightforward once you get the hang of it. Here are a few things you should know about how to file a patent application: 1) Make sure you have an original idea to patent.The laws protecting inventions differ from one country to another. In the United States, the protection for inventions extends to a generator, process, or machine if the invention reduces a desired activity to its simplest form. To secure the patent for an original idea, you must provide evidence that you had a particular idea that was not described previously. For instance, imagine you want to take a photograph of birds in their nest. You could take a picture of all of the birds, color-code the babies, then label the eggs. However, this would not constitute an invention because without the patterns, you can’t easily identify each baby. In contrast, in Japan, the father is entitled to claim an invention developed by his female partner; in China, only the mother can claim an invention. Another way to protect your invention is by criminalizing copying/distribution. As part of the Digital Millennium Copyright Act (DMCA), parties that “knowingly or knowingly” file a work based on a copyrighted work without the authorization of the copyright owner can be subject to civil and criminal penalties. The laws of other countries differ, but this is an important rule to remember. Does your invention require something that exists in the physical world? Then you must consider whether you can secure a patent that covers that idea. For instance, if you want to sell a recycled plastic bottle, you should consider whether the patent on the idea is available in your country. If not, you may have to consider whether or not you’d be able to bring a lawsuit to enforce your patent. If you are uncertain whether a patent is available in your country, consider purchasing a patent consultancy’s formal or register of interest form.

2. Is your invention patentable?

If you’re trying to register a new invention with the United States Patent and Trademark Office, you may be wondering if your invention is patentable. If so, you’re in luck because there are a number of things to consider before you file for your patent.

To file a patent on a new non-risky invention, you’ll need a lawyer and the proper filing fee. Inventors who have an invention that is not patented will be able to gain access to many kinds of financial support. However, if you’re considering patenting an existing invention and making it publicly available, you may face some challenges protecting your invention from infringement. According to the U.S. Copyright Office, famous examples of why you can’t patent prior art include:

Patents are intended to spur innovation. If you plan to use patents to protect your invention, ensure that your goal is to encourage others to build on your invention rather than to purchase it and retain ownership.

“Oil and gas weren’t invented in a day. No one person is the inventor of an idea. Ideas accumulate in inventors’ brains. Over time new contributors have an invention. Patents are arbitrary.” — Steve Jobs

Before you decide whether or not to patent an idea, you should determine whether the idea you intend to patent is something you can patent, and if not, what you think a reasonable royalty would be.

In the United States, patents are granted to the original inventors and recipients of patent applications, which means they need to own the patent in order for the United States to grant them. The United States grants patent to inventions that can be done, and not disclosed until after the patent is granted. In other words, in order to receive a patent, the invention has to exist and be usable.

Many inventors don’t consider protecting their invention as critical to obtaining funding and obtaining additional patents.

“[Patents] give an inventor lots of control, but they are frequently abused.

3. Patentability requirements in the United States

To qualify for a patent in the US, an invention must be new, useful, and non-obvious. New means that the invention must not have been used or known to anyone else in the US before the patent application was filed. Useful means that the invention must function as described in the patent application.Non-obvious means that the invention may not be obvious to the average person. Thankfully, the government incentive is there for inventors to protect their ideas.

Patents are one way that inventors can protect their IP without going through every possible legal option. The deadline for filing for a patent is October 31st of each year. Upon filing for a patent, an inventor must give the patent application to the United States of America within six months of filing. Importantly, other countries have different filing deadlines. Finding that the patent application is complete and the inventor is ready to file is important.

After disclosure of the invention, the inventor can either keep the patent application private or give it to other parties to protect their IP. Many patent families are recognized, and early patent disclosures are vital for successful patent litigation.

Patents have important public policy implications. For example, they encourage domestic innovation, and by extension, create jobs here in the United States. By giving party-specific licenses, patents can be licensed to companies abroad, even in countries that do not respect protections of intellectual property. There is evidence that allows foreign companies to gain access to U.S. patents more easily. By entering into these types of international arrangements, companies can find the most advantageous terms offered by the United States. To maximize the potential benefit from such arrangements, American companies should be willing to enter into a broad range of agreements with other countries.

In addition, patents are used to protect trade secrets, and trade secrets are among the most valuable IP assets. Protecting trade secrets is not an easy task, and no two inventor ratify the same type of arrangement. The public benefits from more innovation led by American inventors.

4. How long does it take to get a patent?

Nazarian says that the time it takes to get a patent depends on whether your product is a utility (how it works) or design patent (how it looks) but the process of design patents is typically faster than utility patents, which can take anywhere from six to 24 months.

IP lawyers are also acutely aware that patent applications are publicly available data. Inventors who might also need to protect their idea against others might be tempted to file one just to speed up the process. “There’s a real disconnect between what’s going on with design patents,” Nazarian says. “Some of the fastest-moving IP cases I’ve seen were essentially inventors filing to get more time to pitch their invention to others, which is similar to the scope of utility patents — but with their invention turned into a whole new thing.” Such “orphan patents,” he says, “are problematic because, in some cases, they just create confusion around the public nature of a patented idea and inadvertently prevent the idea from being commercialized.”

Patent attorney Shawn Nazarian, founder of the patent and IP law firm Adler Lamb Radio in Chicago, says that patent applications are public data. “There’s a real disconnect between what’s going on with design patents,” he says. “Some of the fastest-moving IP cases I’ve seen,” he says, “were essentially inventors filing to get more time to pitch their invention to others, which is similar to the scope of utility patents — but with their invention turned into a whole new thing.” (Shawn Nazarian)

For skilled inventors, however, the speed at which patents come into existence, or as inventor-hired experts refer to them, patent martyrdom, contributes significantly to their delaying their own patent applications. “It’s much easier to inveigle yourself into wanting to have a patent [publicly] versus actually securing it,” says Adam Hayes, a patent attorney who’s been practicing for more than 20 years and reviewed a sample of nine patents from start to finish.

5. How much does it cost to get a patent?

Getting a patent is cost-prohibitive for most small businesses and inventors. It can cost $10,000 and up to $30,000. It’s not meant for small businesses, and it’s not worth it. You can get a trademark for much less.

When your business concept is ready, taking the time to get a U.S. trademark application is crucial to protecting your investment.

The only way you can protect your invention through the first-to-invent system is to file for the U.S. trademark. Once you trademark your invention, you have full legal protection.

“Trade marks ‘commonly‘ register to protect a variety of goods and services. For example, U.S. marks register sock sellers, auto dealers, jewelry sellers, rock and roll disc jockeys, snow blowers, and restaurant menus. The trade mark registration marks ‘commonly’ granted to ‘inventors’ give advantage to the inventor but are not exclusive in all applications involving the same goods or services. Trademark applicants must prove, among other things, that their invention is similar in quality or utility to the marks registered.

In order to obtain protection under the U.S. Trademark Act, you must protect your invention in the United States and file it for trademark protection. Thus, if your U.S. Patent Application for your invention is not filed for trademark protection, there is no legal protection for your invention in the United States.” — Blake J. Trinidad, Trademark Law: Protect Your Invention Before it Becomes Common Law by the American Intellectual Property Law Association

There are a lot of things to consider before deciding on filing for a trademark. Some of the questions you can ask include:

Getting a trademark is a long, complicated process. If you are a starter or small business, it’s not a cost-effective financial investment. If you’re not sure about the legalities of registering a trademark, don’t do it. It’ll be a costly mistake in the long run.

I had an unplanned business idea one day that didn’t have a ready product to sell.

How to Protect Your Idea Patenting Your Invention, and What to Consider

In the age of the internet, ideas are a dime a dozen. While some are genuinely brilliant and original, many more are simply an iteration on something that already exists. How can you protect your idea from being stolen? How do you decide whether or not to patent it? We'll discuss some of the considerations for protecting your idea, including what it entails, how much it costs, and when you should do it.

1. A short history of patents

A patent is a government-granted monopoly to make, sell, or use an invention in the United States. A patent gives a person who comes up with a new idea the right to stop other people from making, using, or selling that idea for a limited period of time, usually 20 years.Thus, if your new game idea takes the internet by storm, you're in a great position to protect it from being stolen, divorced from its original source, and adopted by someone else without your permission.

Patents are an effective way to protect your newly minted idea, because many people, especially non-patent holders, are unwilling to take the time to protect their ideas from being stolen, divorced from their source, or bought out. Thus, they often go out and register the idea (making it available to the public) but don't do anything with it. Patents are costly, and when you get patented, you forfeit your ability to prevent other people from stealing your idea. How much can you expect to pay for a patent? Let's take a look.

 What is a Patent?

A patent application is a formal proposal from an individual or entity (a "patentee") to make, sell, or use an invention. The Patent and Trademark Office reviewes every application submitted and if it isn't already granted, approves it, lists it as a pending application, and issues a patent. Once that patent is issued, it becomes the property of the Patent and Trademark Office (PTO), and other organizations can no longer make, sell, or use that invention without first obtaining a license from the PTO. The PTO makes money by charging licensing fees and also tries to collect a royalty each time someone uses or displays the patented invention. Typically, the PTO costs $30-$60 per application. Thus, a content creator who uses one of your ideas without paying you compensation for the time and effort that you put into the idea is stealing your idea and is subject to infringement laws.

2. What is a patent?

A patent is a set of exclusive rights granted by a government to an inventor or their assignee for a limited period of time in exchange for public disclosure of an invention. Patents are a form of intellectual property (IP), and may be used to prevent others from exploiting that invention, normally for a period of 20 years.

Each patent gives its inventor the right to exclude others from making, using or selling the patented invention for a specified number of years after their application is filed. Patents are granted by the U.S. Patent and Trademark Office (USPTO).

Patents can be valuable for two primary reasons. The first is to prevent others from using or selling your invention before it is commercially viable. If the patent holder can predict when a useful commercial version of their invention will be available, they’re able to invest in that project with far more certainty. The PTO uses statistics such as expected market adoption, use cases, or backward- and forward-looking reports when deciding when to grant a patent.

The second reason patents provide a new revenue stream for inventors is that by licensing their invention, they can collect royalties on royalties, similar to how software developers earn royalties on software licenses. Patent royalties aren’t paid by the patentee directly. Instead, the owners of patents collect them by licensing them. You own your ideas, but others can copy them, which can become an infringement of your copyright—i.e., patent or copyright—whenever they make any reuse of your original ideas. Therefore, a patent defends your idea from others rights-holding entities.

Patents, in general, are given for inventions that are considered financially significant and serve important government objectives. Whether or not you actually intend for your idea to be commercialized or licensed, protecting it is an important component to maintaining control over your IP.

Intellectual property law is complex and subject to different interpretations across different countries. Therefore, while varying standards exist, no two countries seem to apply the concepts similarly.

3. How do you get a patent?

You can file for patents in many countries around the world, but to do so you need to get an attorney. The first step is to find an attorney who specializes in patents and you can do that by searching on Google or LinkedIn. Get in touch and tell them about your idea and what you’ve done so far.Patents protect innovation, and your patent gives you the exclusive right to make, use, sell, and import modified versions of the patent. The amount of protection granted depends on the nationality of the patent owner. English patents cover inventions occurring within the United Kingdom, whereas Japanese patents cover inventions occurring either within Japan or abroad. The European Patent Court and the World Trade Organization also apply patent regimes to some extent and these bodies do business through formal agreements known as IP Treaties. The US Patent and Trademark Office administers patents in most countries.

The first step in protecting your idea is actually acquiring a patent. Patents can be expensive to secure, and the longer you wait before filing, the more expensive it will be. You can apply for a patent in the same way as securing a contract. Some countries may even give you priority in filing your patent if you have a larger business or you have an American citizen managing your company.

The lawyer who files your patent will own the patent for 15 years from its filing date. After the 15-year period passes, the patent automatically lapses to the government. As a general rule, it’s in your best interest to get as much of your idea protected as soon as possible as the sooner you do so, the sooner you can reap the rewards of having your idea patented. Others have argued that there is some particular urgency you need to get your idea patented as soon as possible as the sooner you secure it the sooner you can realize the financial benefits.

It’s also important to note the exclusivity period of a patent varies internationally.

4. When should you apply for a patent?

Generally, you should apply for a patent as soon as you can and as soon as you think your product is ready. If you wait too long, you could lose the opportunity to protect your patent rights.However, you can always apply for a patent only after you’ve built your prototype and prove to yourself that you can offer an actual, marketable solution to the problem. You should also be willing to give away your invention for free so that you have the chance to recoup your research and development costs.

S.M.A.R.T (standard patent application) guidelines are helpful when it comes to determining the merit of patent applications.

Patents protect new inventions from being copied, which means that an individual who finds your invention independently can’t simply make copies of it and sell those copies to others. Essentially, your patent prevents others from using (non-patentable) parts of your invention.

There are two major components to patentability — usefulness and rarity. By themselves, these categories aren’t all that helpful. A party doesn’t legally own the use of a procedural novelty in common law countries, or common utility after 1895, for example.

The usefulness of an invention is also subjective. That is, a party will interpret the requirements of patentability differently from other parties that may or may not have the same technical knowledge at the time. Rare-earth magnets, for example, are technologically novel when it comes to their use in magnets, but they are common-law inventions in most other countries.

Rarity is taken care of on the USPTO website. The requirements for invention, including the phrasing,

is the only relevant criterion. It checks for the existence of an inventive idea. Whether the idea is original, obvious, or simply possible is immaterial.

It is also important to remember that, while a patent might prevent others from infringing your patent, other parties might be able to make and sell their own variations of your invention.

5. Where can you apply for a patent?

A patent can be applied for at the United States Patent and Trademark Office (USPTO) or the European Patent Office (EPO). The USPTO is a part of the Department of Commerce and the EPO is a part of the European Union. There are also patent offices in individual countries.

In order to apply for a patent, an inventor (or their legal adviser) must first register the idea with the relevant patent office. Generally, an inventor registers their patent with the USPTO first. Once the inventor has registered their original idea with the USPTO, then other countries can request to register the same idea. Any country with a valid patent can request to register an application by simply sending a request to the USPTO with the exact title and filing date of the application, along with a copy of the patent. Once the USPTO receives and processes the request, it will deposit the application in its own database.

Once the patent is deposited, it doesn’t necessarily mean that other countries have received and decided to register the same patent. It took the USPTO over thirty years to issue 7,500 patents! However, if foreign countries decide to register your idea, it could negatively impact your potential market and revenue, so it’s best to apply for and secure a patent in the country that awards the patents.

The patent costs $1,000 to $25,000 depending on the fee schedule offered by the USPTO, and preferably around $10,000 or less (although most patent offices will provide you with a quotation for between $500-$2500). When you receive your patent, you’ll receive a patent covering your new idea. In the US, the cost to patent is set by the U.S. Congress. Should you want to implement your new idea, you’ll need to open and maintain a patent license for it in your country of origin, which may include an expiry date and cost.