Image Courtesy: Opensource.com @ FlickrObtaining a patent not only protects your company but increases your valuation. Given the advantages, it’s no wonder there are dozens of kits and quick online services calling for inventors to file patents. The process of getting a patent with the help of The United States Patent and Trademark Office (USPTO) is relatively simple in principle.  Advertising wants you to believe in their quick routes to obtaining patents, but it entails a little more work than that.

In a nutshell here is how to patent an idea:

  • First you must realize that one size does not fit all. There are different kinds of applications for different kinds of patents. You have to decide what kind of protection you are seeking. There are some things like laws of nature, physical phenomena, and abstract ideas that cannot be patented.
  • Conduct a thorough search of the prior art to determine if your idea differs enough from all other existing inventions that you can claim a significant variation. You should search all patent records as far back as they go, back even to 1790.
  • Describe your idea or invention in detail. Since the early 1900s a working model is no longer necessary, but the invention should definitely function and your documentation should depict in detail exactly how it works.
  • You have to select a patent classification using USPTO data bases. Search through to find the kind of idea you have and obtain a classification code.
  • You must decide whether to file a provisional (i.e., holding) or non-provisional application.

None of these steps requires any particular legal expertise. In theory, all can be accomplished by any layman. Considering no bar certification is needed, outsourcing application preparation has been an issue in the recent past. A couple of years ago the USPTO issued a statement in the Federal Register stating that outsourcing in the patent area is a clear violation of the Export Administration Regulations (EAR). EAR prohibits the transmission of sensitive technological data overseas without a proper license. But this law does not prevent prior history search which is in the public domain. Prior art research forms the bulk of outsourced patent work.

If need be you may always seek the assistance of the staff of the USPTO, who are required to help you fill out your application. However, obtaining a patent in a timely fashion can be tricky. Some parts of the process are irreversible and bad decisions can turn the process off altogether or lead to years of delay.

Patent agents vs. patent attorneys

Patent agents are legally trained professionals who are not necessarily licensed to practice law in the jurisdiction they work in. They are non-lawyers, but may be engineering professionals or technical experts in various fields where patenting is common. These experts have passed the necessary examinations to qualify for interaction with the USPTO. They can often help with the uncertainties of the paperwork at all levels. They can implement and effectively document the patent search and put things in a form most likely to receive favorable judgment. However, apart from handling the application process, it is specifically patent attorneys who are qualified to represent you in case of a patent violation and prosecution.

Patents can take years to be approved, leaving a company either in limbo or working with a provisional patent. Furthermore, the cost may prevent some smaller startups from pursuing it. Consider all your options before filing a patent application.


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