What Everybody Needs to Know Before Starting the Patent Process

Rich Goldstein

Founder & Principal Patent Attorney
hands pointing to designs on paper

When considering pursuing an invention or idea, the first thing you should ask is “Can I patent it?”

Patent Questions to Consider Before Starting the Patent Process

The fact is, when considering whether to pursue an invention, most people will start by asking themselves, “How am I going to get this on the market?” However, there are several important patent questions to ask yourself. 

Helpful questions include will I be able to obtain a patent through the United States Patent and Trademark Office (USPTO); how similar is the prior art related to my invention; is this actually a new and useful process, machine, manufacture, or composition of matter; and is my idea or invention non obvious?

Risks of Asking the Wrong Questions

Asking the wrong question first before filing a patent can cost you a lot more in time and fees, and may even cost you the rights to your idea. Because many people think the marketing is the most important part of selling anything, they will look for someone to help them market their product.

They do this rather than seeking protection for their invention or finding out whether they even have something unique enough to be patented. As a result, they can spend $10,000 or more trying to sell an idea that no one wants because it’s not patentable.

Case in point: A woman hired an invention marketing company shortly after she had come up with an innovative new design for a kitchen tool. She was a savvy businesswoman, but she had never attempted to pursue an invention before and didn’t know much about this area. Like many people, immediately after coming up with the idea she asked herself, “How am I going to get this on the market?”

That question led her to conclude that a marketing company was the best route for her. She selected a company that worked with new inventors, and invested over ten thousand dollars in the course of the next year, thinking she was headed down the right track. She was under the impression that while the marketers shopped her idea to major companies, she was protected.

Apparently, the marketing company she was working with had indeed filed a provisional patent application for her initially. However, not understanding the difference between a provisional patent and a non-provisional patent, this woman did not realize that, at best, she had one year to hire a patent attorney to write the utility patent application necessary for her to get the actual protection of a patent. She thought she was protected already, and that she didn’t need to do anything else to patent it.

Is Filing a Provisional Application Bad?

Now, filing a provisional application isn’t necessarily a bad step if done correctly and strategically. A provisional patent can be an effective placeholder when written correctly. Provisional patent applications are important for reserving your priority date (your filing date is when you can begin to exclude others from using your idea or invention), but it is never reviewed by a Patent Examiner and will never (by itself) become a patent. 

A provisional patent application only maintains patent pending status for a year. If the inventor doesn’t file a full utility non-provisional patent application within a year, he or she will lose any priority date and rights in the idea. ( For more on provisional patent applications, see: “Are There Simple and Cheap Alternatives to Patenting?”)

IMPORTANT: Also, under the patent laws (35 U.S.C. § 102(b), once an invention is publicly disclosed (such as through marketing it), if a properly written non-provisional patent application is not filed within one year of the date of first disclosure, the inventor will forever lose the right to patent the invention. Unfortunately, in many cases, people rely on a poorly written provisional application to try to stop that one year “clock” from ticking. PLEASE: If you are currently marketing something for which you have not filed a well-written non-provisional patent application, do not forget about the one year rule! Of course, putting an unprotected product in public view is still not advisable. Even if no one tries to steal your invention, when that year expires it will be too late to ever pursue patenting it.

As it turned out, the woman didn’t have the ability to patent her kitchen tool at all. Like many inventors, she had been so focused on the marketing aspects of this project that she didn’t ask the critical questions about the legal aspects. This happens to a lot of people. It’s easy to miss the most important first steps in the patent process–even most lawyers (those who don’t specialize in patents) don’t understand the details of how the patent system works.

Final Thoughts

So that brings us back the to the original point: The first question you should ask when pursuing an invention or idea is “Can I patent it?” And the person you should be asking is a registered patent attorney.

A U.S. patent can be incredibly important for your invention to preserve your market share. Be sure you are doing the work up front before submitting your patent application for review by a patent examiner. 

Conduct thorough patent searches for similar utility patents, file your provisional patent application to get the earliest priority date, and follow it up with a well written non-provisional patent application. Once the patent is granted, be sure to regularly pay all maintenance fees and documents. 

A patent attorney will be able to help you through all these stages and make sure you are presenting your best foot forward to the USPTO. 

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