To get a patent, you have to submit a patent application with the USPTO. The submission is the only step that you need to take to get a patent. However, you can take proactive actions to be more cost-effective when you go through the patent process.
So, what are the steps to get a patent, cost-effectively? You should perform as many of the low-cost and free steps yourself. These will help you to understand the patent process more while also helping the patent attorney you hire understand your invention more. This strategy will give you a better patent at a cost-effective rate. Otherwise, you may be wasting your money.
The first seven steps below are free or low cost. You should do them yourself before hiring a patent attorney. In my opinion, you should hire a patent attorney to help with the rest of the steps.
Step 1: Determine if the invention is patentable (Free)
The first step in the patent process is to find out if your invention is eligible for patent protection. In general, most inventions are eligible for patent protection unless your invention is software, business method, or perpetual motion machine.
Step 2: Conduct a patent search on your own (Free)
A patent search is a search for existing technology that shows your invention is not new (i.e., novel). Typically, the search is limited to the patent office database for prior patents and published patent applications.
Even if you don’t find anything during the search, that does not mean that you will get a patent. The patent examiner might find better proof (i.e., prior art documents) that your invention is not novel.
If you do find something that shows your invention is not new, you have saved yourself money and more importantly time. You can now move on to the next idea. You will be using your funds more cost-effectively.
Step 3: Prepare a business plan (Free)
A business plan is a document that covers the major components of starting a business. Yes, launching a product means that you will be starting a business. The primary purpose of the business plan is to find out if you can make money on the invention.
Step 4: Show proof of concept (Free or Low-Cost)
A proof of concept is a prototype. The prototype does not need to be the finished product. Instead, it only needs to demonstrate that the invention does what you say it will do.
The prototype may cost some money to build. However, in my opinion, as long as it is affordable, the prototype is money well spent and will help in the long run to lower the patent costs.
Your patent attorney will get a better sense of how the invention handles and feels in the hand. By having the first-hand experience with the invention, the patent attorney is in a better position to write the patent application.
Also, when you build a prototype, you may need to hire an engineer or product designer to draw up a 3 dimensional model of the invention. The design can be used in the patent application and will help to lower the cost of the patent application.
Step 5: Show proof of market demand (Free or Low-cost)
Proof of market demand means that if you build your invention, consumers will buy it. Without market demand, the best invention and patent will not make you any money.
Step 6: Determine market size (Free)
The total market size is the total number of consumers that may purchase the product. For example, if the invention is a home doorbell (e.g., Ring doorbell), then the total market size is the total number of homes in the United States.
You need to exclude apartments because they don’t have permission to install their doorbell. You also need to take a percentage of the total market because no one can sell to the entire market size.
After calculating the market size, you need to be still able to make money. The business plan would have made you calculate the net profit you can make on the invention. Multiply the net profit per widget with the market size to see if that is enough money to entice you to spend your time and money building and launching your business or product.
Step 7: Build a website (Optional, Free or Low-Cost)
Many startups build a website for their invention. It takes time to build a website.
The completion of the website should be timed to the filing of the patent application so that you can immediately start marketing of your invention as soon as the invention is patent pending (i.e., after a patent application has been filed).
Your time is used efficiently because you are starting marketing as soon as possible.
If you want to know more about these seven steps, I’ve written a more thorough article on these steps in 7 Steps to take before spending money on a patent attorney.
Steps 8-11 may require the help of a patent attorney. Otherwise, the quality of the patent may be in jeopardy. If you hire a patent attorney before finishing steps 1-7, then you may be wasting your money.
Step 8: Decide to DIY or get help through the patent process?
You have three different options.
- Do it yourself (DIY): You can prepare your patent application and coordinate all of the efforts with the patent office.
- Hire a patent agent: A patent agent is someone who passed only the patent bar which is a 100 question test on the procedures at the patent office.
- Hire a patent attorney: A patent attorney is someone who is an attorney and is a patent agent.
I recommend hiring a patent attorney. Why? A patent is a complex document. For example, the patent drafter needs to understand how the claims and the detailed description section works in conjunction with each other. Otherwise, you may not get sufficient coverage.
Your patent attorney will understand the nuances of patent law and have more skills than you to draft the patent application. Sometimes, mistakes made at the beginning of the patent process can’t be fixed.
If you do it yourself, it may be cheaper in the beginning but in the end, you may be paying more for the patent.
A patent agent is a person with a science background and has passed the patent bar exam. In general, a patent agent works under a patent attorney. However, patent agent companies exist that help inventors get patents. However, the problem with patent agents is that they cannot advise you on contract law. When you are launching your invention, you will need agreements and patent agents cannot advise or get these agreements for you.
Step 9: Conduct a formal patent search
Your patent attorney should or may recommend a formal patent search. A formal patent search is one which is not merely a keyword search on the patent databases. Rather, it identifies the right classification for your invention and then performs keyword searches within those categories so that only relevant search results show up and are reviewed.
One of the biggest caveats to a formal patent search is that it is only an opinion and not a guarantee of the result. Moreover, the likelihood, should the opinion be positive, is not a 99% guarantee that you would get a patent. Rather, the better perspective is that should the opinion be positive, it is just that you are more likely to get a patent on your invention than not.
If the patent search uncovers a prior reference that directly discloses the same invention, then it is most likely that you would not be able to get a patent on your invention.
After completion of the patent search, it is time to prepare and file a patent application so that you can achieve patent pending status on your invention.
Step 10: Prepare and file a patent application
The preparation and filing of the patent application should be handed off to a patent attorney. The patent attorney will help you to identify the point of novelty of your invention, the minimally viable product to help get broad patent protection, and to write it in a way to help mitigate the possibility that infringers would design around your patent in the future.
In the short term, it will cost you more money. However, in the long run, the quality will be higher but the overall costs lower.
Inventors that write the patent application themselves make critical mistakes. That has been my experience at least when I consult with them. Because I have to fix the mistakes, the cost to fix them is expensive, and sometimes they cannot be fixed. You wouldn’t operate on yourself. Don’t represent yourself either. Get some professional help.
A poor man’s patent doesn’t help you either. It is another way that those that try to get patent protection themselves hurt themselves. A poor man’s patent is mailing a description of the invention to yourself so that you have a government date stamp via the United States Postal Service. However, we now live in a first inventor to file regime. Mailing things to yourself is useless. Don’t do it. Just file the patent application.
If you are wondering about the cost to get a patent, read my Patent Cost article. You can also understand the costs in terms of the timeline during the patent process. Read my article about the Patent Cost Timeline.
Step 11: Launch or start marketing your product or service
You don’t need to launch or start marketing your product or service to get a patent. However, most clients eventually do. As such, I wanted to give you an actual step in the process so that you know when you are safe to market your invention.
In particular, once you have achieved patent pending status, you can make your website public and certain marketing your patented product or service. If anyone tries to file a patent application after you, then since your patent application was filed first, it receives priority. As between you and the later-filed application, your application will be granted a patent on the invention should a patent be had on the invention.
Step 12: Don’t give up too fast if the Patent Office initially rejects your application for patent
Lastly, I want to encourage you not to give up on the patent process so easily. Frequently, inventors might think that an initial office action rejection means that there is no hope that they will get a patent. Unfortunately, the patent office rejects many applications at first, but these rejected patent applications eventually mature into a patent. Rather, when you receive the initial office action rejection, have your patent attorney do an analysis or diagnostic of the strength of the rejection.
To find out how to respond to an office action, read my extensive guide: How to respond to an office action?
By completing the steps of the patent process first and on your own, you can save a lot of money because it prevents you from starting the patent process if you can’t make money on the invention. Also, these steps will help you to understand the patent process better, which in turn helps you to make a better decision. That means you are going to save a lot of money. Also, the patent will be of higher quality.