How to Get a Patent on a Product

by Jennifer Kiesewetter in

TLDR

  • Securing a patent should be part of the startup’s strategy.
  • According to the USPTO, a patent “is a type of property right. It gives the patent holder the right, for a limited time, to exclude others from making, using, offering to sell, selling, or importing into the United States the subject matter that is within the scope of protection granted by the patent.”
  • According to federal law, “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.”
  • Under federal law, there are three types of patents: design, plant, and utility.
  • According to the USPTO, “approximately 90% of the patent documents issued . . . in recent years have been utility patents, also referred to as ‘patents for invention.’”
  • Since anyone can conduct a patent search online, it’s a good idea to do a preliminary patent search early on in your invention and technological creation process.
  • Utility and plan patents are good for 20 years from the date of filing. Design patent applications have a patent term of 15 years from the time of filing.

For tech startups, patents are critical on many fronts — from protecting its product development to deterring competition to raising its valuation. More specifically, securing a patent should be part of your startup’s strategy, helping take your product to market -- giving you a competitive edge.

The United States Patent and Trademark Office (USPTO) is responsible for “examining patent applications and issuing patents.” According to the USPTO, a patent “is a type of property right. It gives the patent holder the right, for a limited time, to exclude others from making, using, offering to sell, selling, or importing into the United States the subject matter that is within the scope of protection granted by the patent.”

Like other intellectual property protections, such as copyright and trademark, you must carefully follow a specific process to secure a patent. In this article, we will walk through the steps you need to take when getting a patent on your startup’s products.

What Can You Patent?

According to federal law, “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” The U.S. Patent and Trademark Office clarifies the above definition by stating:

  • “A patent may only be obtained by the person who engages in the act of inventing.”
  • Only one patent may be granted for each invention;
  • The invention “must have a specific, substantial, and credible utility;”
  • Patents are limited to the following four types of subject matter eligibility:
  • Process – “An act or series of acts of steps”
  • Machine  -- “A concrete thing, consisting of parts, or of certain devices and combination of devices”
  • Manufacture – “An article produced from raw or prepared materials by giving these materials new forms, qualities, properties, or combinations, whether by hand labor or by machinery”
  • Composition of Matter and Improvement Thereof – “All compositions of two or more substances and all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids, for example”

Ideas may not be patented. Ideas must take the form of one of the four types of subject matter eligibility mentioned above.

Similar to trademarks, the USPTO determines whether a patent should be granted. However, the patent holder must enforce their patent rights. The USPTO will not do so.

What is a Utility Patent?

Under federal law, there are three types of patents: design, plant, and utility. A utility patent is “issued  for the invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof, it  generally permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of patent application filing.” According to the USPTO, “approximately 90% of the patent documents issued . . . in recent years have been utility patents, also referred to as ‘patents for invention.’”

Utility patents are further broken down into provisional and nonprovisional. A provisional utility patent “is a quick and inexpensive way for inventors to establish a U.S. filing date for their invention, which can be claimed in a later-filed nonprovisional application.” A nonprovisional utility application “is examined by a patent examiner and may be issued as a patent if all the requirements for patentability are met.”

The USPTO reports that it receives more than 500,000 patent applications annually, with most of them being nonprovisional utility patent applications.

Since anyone can conduct a patent search online, it’s a good idea to do a preliminary patent search early on in your invention and technological creation process. In searching for already-granted patents, the USPTO recommends using the following Seven Step Strategy to conduct your preliminary free online search:

  1. “Brainstorm terms to describe your invention based on its purpose, composition and use.”
  2. In the site’s search box on the USPTO’s website, enter your terms. “Enter ‘CPC Scheme [plus keywords(s) describing invention]’; for example, if you were trying to find CPC Classifications for patents related to umbrellas, you would enter ‘CPC Scheme umbrella’. Scan the resulting classification's Class Scheme (class schedules) to determine the most relevant classification to your invention.”
  3. Verify the relevancy of the CPC classification as it relates to your invention.
  4. “Retrieve U.S. patent documents with the CPC classification you selected in the PatFT (Patents Full-Text and Image) database (http://patft.uspto.gov). Review and narrow down the most relevant patent publications by initially focusing on the front page information of abstract and representative drawings.”
  5. “Using this selected set of most relevant patent publications, review each one in-depth for similarity to your own invention, paying close attention to the additional drawings pages, the specification and especially the claims. References cited by the applicant and/or patent examiner may lead you to additional relevant patents.”
  6. “Retrieve U.S. published patent applications with the CPC classification you selected in Step 3 in the AppFT (Applications Full-Text and Image) database (http://appft.uspto.gov). Use the same search approach used in Step 4 of first narrowing down your results to the most relevant patent applications by studying the abstract and representative drawings of each on its front page. Then examine the selected published patent applications closely, paying close attention to the additional drawings pages, the specifications and especially the claims.”
  7. If you want to broaden your search to find additional relevant patents based on new keyword searches, you can return to Step 1 and begin again. You can also explore non-U.S. patents on the European Patent Office’s Worldwide Espacenet patent database (http://worldwide.espacenet.com).

What Does Patent Pending Mean?

When you receive a patent-pending status, it means that you have submitted your patent application to the USPTO. When you submit your application, the USPTO “issues a patent pending serial number, which serves to alert competitors and the public that you are in the process of seeking a patent on your invention.”

Patent pending does not permit you to protect your invention like a granted patent does, meaning you cannot sue someone for infringement for using your creation. You’ll have to wait until your patent is approved and published by the USPTO to protect your invention legally. However, under patent pending, you have legal rights to prevent someone from filing a similar patent application. The application with the earlier date takes priority in this case.

However, although a patent-pending status doesn’t give you the legal rights of protection, it does convey a unique product to both investors and consumers. For example, investors may appreciate the increased value in your startup knowing you have secured a filing date with the USPTO. Additionally, consumers may see “patent pending” and think that you’re offering something new and cutting-edge, enticing them to buy.

How to Get a Patent on a Product?

To patent a product, you first must determine whether your product falls into a patentable category and no other patent on your product is already published. Next, keep copies of drawings, reports, memos, and any other documentation you’ve made regarding your product.

Since the government will require details about your startup's product, you’ll also need to create a prototype along with a detailed explanation of how your product is designed and how it works. Finally, establish your budget for your patent application filing, whether you file yourself or hire a patent attorney to help you. Also, keep in mind, it typically takes 18 to 24 months to hear from the USPTO on whether your application is approved.

Depending on the size of your startup, you may decide to wade into the patent process as opposed to jumping in feet first. If this sounds more reasonable, you can file a provisional patent application, giving you some immediate protection as “patent-pending” for less expense. However, you’ll eventually want to secure the complete patent, giving you enforceable legal rights.

How to Patent a Business Idea?

You cannot patent a business idea or any other idea for an invention. To secure a patent, ideas should be developed into a patentable product. Once you do that, you can then patent your product as outlined above.

How to Patent an Idea for an App?

Unlike a business idea, you can patent an idea for a mobile phone app, as “it is part of the methods of interaction.” Because the app plays a part in the functioning of a smartphone, it is patentable. But, you cannot patent the software and computer code that runs the app. It’s important to understand that distinction, as it often gets confused.

To secure a patent on your app, you can follow similar steps to the ones mentioned above for patenting a product. However, remember, the app world is highly competitive. According to UpCounsel, Apple iTunes App Store offers more than 2 million apps as of 2019 and Google Play offered more than 3 million. When you’re exploring your patent options, you may also want to determine if you need an international patent, as apps are widely used worldwide.

How Long Is a Patent Good for?

Before June 8, 1995, utility and plant patents were good for 17 years (the “patent term”). However, on June 8, 1995, forward, utility and plan patents are good for 20 years from filing.

Design patent applications filed after May 13, 2015, have a patent term of 15 years from the time of filing. Under certain circumstances, patent terms may be extended.

How Much Does a Patent Cost?

Each patent application, except for provisional applications, requires a search fee, an examination fee, and a filing fee. The USPTO lists all fees for review.

Let’s look at an example. For a utility patent application, the search fee is $700. For small entities, this fee is reduced to $350. For micro-entities, the fee is $175. The examination fee for a utility patent is $800, with small entities paying $400 and micro-entities paying $200. The basic filing fee for a utility patent is $320 for a paper filing. For small entities, this fee is reduced to $160. For micro-entities, the fee is further reduced to $80.

Provisional patents have a different set of applicable fees. The application filing fee for provisional patents is $300. For small entities, the fee is $150, and for micro-entities, the fee is $75. The processing fee for entities of all sizes is $50. No search fees are associated with provisional patents.

Of course, if you engage an attorney to help you with the patent process, you’ll need to tack on legal fees to the above patent search, examination, and filing fees.

We can help!

At AbstractOps, we help early-stage founders streamline and automate regulatory and legal ops, HR, and finance so you can focus on what matters most — your business. If you're looking for help in securing a patent, we help by overall shepherding the process to ensure it's done right. Sign up to get started.

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