How To Patent an Idea in 8 Easy Steps (2024)

You’ve invented a groundbreaking product, but fear copycats will steal your idea once it hits the market. Patents can help protect your business, though they’re not foolproof.

Take Bitten Design, for example. “We own the worldwide patent for the mustache pacifier, but if you go and look on the internet and type in ’mustache pacifier,’ there’s a load of copies,” says Al Cuttell, Bitten Design co-founder. The Bitten team believes legally stopping dozens of companies from copying their products isn’t feasible.

“We don’t want to spend time in such a negative way,” Al says. “We look at other companies who copy our products, and sometimes it’s quite nice because you realize that you’ve done something good that other people want.”

Despite challenges, patents remain the most robust tool for protecting intellectual property in the US. This guide will walk you through creating a successful patent application.

What is a patent?

A patent is a legal tool enshrined in the US Constitution to protect intellectual property. Specifically, a patent is a document that declares ownership of an invention, much like a deed proves ownership of real estate.

How do patents work?

The United States Patent and Trademark Office (USPTO) issues patents in exchange for registration fees, and issuance grants the patent holder “exclusive rights.”

Exclusive rights allow the patent holder to “exclude others from making, using, offering for sale, or selling” the invention covered by the patent domestically or imported from overseas. While acting as a central clearinghouse for patent and trademark information, the USPTO doesn’t enforce patent rights. Those rights are enforced through the civil court system.

Infringement is a common challenge despite the protection of a patent. Patent infringement occurs when a third party makes, uses, sells, or imports a patented invention without the patent holder’s permission. 

Patent holders must be prepared to enforce their rights through the legal system, which might involve litigation to get compensation or stop further infringements.

Why get a patent?

You’ve come up with a fantastic product idea. It could be the next big thing, but how do you make sure it stays yours? This is where patents come in. 

A patent is a way to claim ownership of your invention. It gives you the right to stop others from copying, selling, or using your creation without your permission. But why go through all the trouble? 

• Protection: A patent can keep copycats at bay and give you peace of mind.
• Financial opportunity: Your brilliant idea could lead to financial success. With a patent, you can sell your invention to companies, license it out, or even start your own business.
• Credibility: Having a patent shows you’re serious about your product. It can impress investors and make you stand out in your industry.

If you think your invention could be significant, getting a patent is worth considering. 

How to get a patent in 8 steps

1. Determine if patent protection is appropriate
2. Decide if your invention is patentable
3. Conduct a patent search
4. Determine what kind of patent you need
5. Prepare to submit your application
6. Submit your application
7. Work with your patent examiner
8. Get approved and pay the final fees

Applying for a patent is one of the more complex processes for protecting your intellectual property. While it’s possible to do it independently, consulting a patent attorney to help you prepare and submit the filing may be beneficial.

1. Determine if patent protection is appropriate

If you want to protect a creative work, seek a copyright; for brand names, logos, or slogans, apply for trademarks. If you want to protect an invention, a physical product, or a design, patent protection is the right route.

2. Decide if your invention is patentable

To be patentable, an invention must be:

• Patentable subject matter. Under Section 101 of the US Code, “patentable subject matter” includes any “process, machine, manufacture, or composition of matter” or “any new and useful improvement thereof.”
• Useful. A patent’s usefulness is easily proved—it must offer some functional purpose.
• Novel. A patent is not novel if it was known to the public before the applicant filed it.
• Non-obvious. A patent is non-obvious if inventing it requires some advanced skill that an ordinary person couldn’t replicate.

3. Conduct a patent search

Ensure your invention is sufficiently novel by investigating whether anyone else has a similar existing patent. You can run a search through the USPTO online.

4. Determine what kind of patent you need

Do you need to file a utility patent application or one for a design or a plant patent?

5. Prepare to submit your application

Review the USPTO’s catalog of various patent registration fees and timelines for examining your application. At this stage, after ascertaining the complexity of your application, consider hiring a patent lawyer.

6. Submit your application

Use EFS-Web, the USPTO’s electronic filing system, to file your patent application online. Your application must contain all required parts (see the list below) and the appropriate fee. You can file either a regular patent application (RPA) or a provisional patent application (PPA). 

A PPA allows you to claim “patent pending” status for your invention and is less complex than applying for an RPA. An RPA entails the complete patent examination process, explored below.

7. Work with your patent examiner

If your application is incomplete, the USPTO will notify you by mail of what’s missing. Depending on the deficiency, you’ll have a limited period to update your application. If the omission isn’t corrected, your application will be denied and returned to you. 

If the USPTO accepts your application as complete, it will assign it to an examiner, who will review it to determine whether it meets the legal requirements of patentability. 

You’ll have opportunities to amend your application if the examiner finds you’ve failed to meet legal standards. After two rejections, you may appeal the examiner’s decision to the Patent Trial and Appeal Board (PTAB).

8. Get approved and pay the final fees

If the examiner determines your application is satisfactory, you’ll receive a Notice of Allowance from the USPTO. You must then pay an issue fee and possibly a publication fee before the patent is finally issued.

3 types of patents

Patents fall into three main categories.

• Utility patent
• Design patent
• Plant patent

Utility patent

Utility patents protect anyone who invents or discovers:

• A new and valuable process
• A machine
• An article of manufacture
• A composition of matter
• Any new and useful improvement of the above

Utility patents are considered more valuable than design patents and have a term of 20 years from the filing date. David Barnett, inventor and founder of PopSockets, explains, “Utility patents typically tend to be more valuable than design patents, but it turns out that when you’re enforcing your IP, when you’re trying to shut down factories that are making counterfeits, it’s much easier to use a design patent.”

To file for a utility patent, you’ll need to do the following:

1. Conduct a preliminary patent search.
2. Prepare a specification describing the invention in detail.
3. Draft claims that define the scope of protection.
4. Create drawings or prototypes, if necessary, to explain the invention.
5. Apply electronically through the USPTO’s Patent Center.
6. Pay the required fees (filing, search, and examination fees).

An examiner will then review the application and conduct a search of prior art. 

Design patent

The USPTO grants design patents to anyone who invents a new, original, ornamental design for an article of manufacture. This includes specifications for pieces of clothing, furniture, or consumer products.

A design patent protects an article’s appearance but not its functional features. It is granted for 15 years from the grant date and is typically easier to enforce against counterfeiters. 

The application process is a bit simpler:

1. Prepare drawings or photographs that clearly show the design.
2. Write a brief description of the drawings.
3. Apply electronically or by mail.
4. Pay the required fees.

An examiner will then review the application for novelty and non-obviousness. The process is often shorter than that for utility patents. 

Plant patent

The USPTO grants plant patents to anyone who invents and “asexually reproduces” any new variety of plant life. Asexual reproduction means you’ve produced the plant in some way other than through the germination of seeds—such as cutting or grafting.

A plant patent protects the entire plant. It excludes others from asexually reproducing, selling, or using the plant. It also has a term of 20 years from the filing date.

To apply for a plant patent, do the following:

1. Provide a detailed botanical description of the plant.
2. Include color drawings or photographs of the plant.
3. Explain the origin or parentage of the plant.
4. Describe how you have asexually reproduced the plant.
5. Apply electronically or by mail.
6. Pay the required fees.

A specialized examiner will review the application and look for the distinctness and newness of the plant variety. The patent office excludes tuber-propagated plants (e.g., potato plants) from plant patent protection.

💡 Tip: Inventors can often seek multiple patents for the same invention (e.g., utility and design patents). Consider getting professional assistance from a registered patent attorney or agent to successfully guide you through the patent application process. 

Patent vs. copyright: Similarities and differences

Both patents and copyrights are legal tools for protecting intellectual property in the US. Although they are both concerned with preserving the products of imagination, they are distinct in what they are meant to cover.

Similarities

• Both concern protecting products of imagination.
• Both are devices of US federal law designed to protect intellectual property rights.

Differences

• Copyrights
• Copyright protect ownership rights in creative works.
• Examples include books, films, and works of art.
• Patents:
• Patents protect ownership rights of inventions.
• Examples include machinery, consumer products, and product designs.

Patent checklist

Depending on what you want to patent and the type of patent you seek, your application should include:

• Patent description. A patent description should include your invention’s name, purpose, components or steps, how the components interact, or how the steps are enacted. It should also include instructions for the invention’s use, descriptions to accompany drawings, and the benefits or alternative uses.
• Patent drawings. Your application must include drawings or schematics unless it’s for a method, materials composition, or chemical compound. They should be straightforward for a layperson to interpret. The drawings must capture all views and angles and be sufficiently labeled with reference markings. Drawings include line drawings, charts, photographs, computer-generated graphics, or hand illustrations.
• Inventor information. You must identify yourself and any co-inventors in your application. A co-inventor is anyone who contributed to the conception of your invention. It’s essential to make these identifications to insulate yourself from any competing patent claims or lawsuits down the road.

What you can and cannot patent

Your invention must be new and not obvious to get a patent, but some products are simply not patentable. You don’t want to spend time and money on your application only to find out you never had a chance. 

What you can patent:

• Inventions: New devices, machines, or processes that solve problems or improve existing solutions fall into this category. Think of groundbreaking technologies that change how we do things.
• Compositions: This covers new materials or mixtures. It could be an innovative plastic formula or a novel drug compound that treats a disease more effectively.
• Designs: A product’s unique appearance can be patented. This isn’t about how something works but how it looks.
• Plants: If you develop a new plant variety through breeding or genetic modification, you might be able to patent it.

What you can’t patent:

• Natural phenomena: Anything that already exists in nature is off limits. You can’t patent a newly discovered plant species or a mathematical equation you’ve uncovered.
• Abstract ideas: General concepts or theories not tied to a specific, concrete application won’t make the cut.
• Laws of nature: Fundamental scientific principles or physical phenomena are not patentable. These are considered fundamental truths of the universe, not inventions.
• Obvious improvements: Minor tweaks or changes to existing inventions that any expert in the field could easily come up with don’t qualify.
• Pure information: Lists of instructions or computer programs that are essentially just data aren’t patentable.

Selling your patented product

Securing a patent for your product is the first step to getting it out worldwide. The real challenge lies in successfully commercializing it, which is where ecommerce platforms like Shopify come into play.

With Shopify, you can create a beautiful online store to sell your newly patented products. With secure payment processing and inventory management tools, Shopify simplifies the process of bringing your innovation to market.