Have you developed a unique product, system or trade secret, but you're afraid that someone might steal your idea? One way to protect your invention with an exclusive right is to file a patent for it. This form of intellectual property encourages inventions that bring value to society. Obtaining patents is difficult and expensive, but it can set your small business apart and increase profits.
Before filing a patent, invest in a market-feasibility study to validate your product idea and make sure there is a market for it. Conduct a patent search online, read the guidelines provided by the U.S. Patent and Trademark Office and consult a patent lawyer.
What Is a Patent?
Approximately 370,434 patents were granted through the United States patent system in 2019 — that's more than double compared to 1999. The role of patents is to encourage innovation by protecting the interests of businesses and inventors.
These legal instruments are regulated by the U.S. Patent and Trademark Office (USPTO) and grant investors the right to exclude others from selling, copying, using, importing, or otherwise infringing upon their processes, systems or designs for a designated period. Those who qualify for a patent are legally required to disclose their invention to the public.
Generally, U.S. patents are valid for 20 years from the filing date. They can be granted to individuals or businesses that discover or invent new and useful equipment, processes or articles of manufacture. Bluetooth technology and electric light bulbs, for example, are two of the most famous patented inventions worldwide. An invention must be unique and useful to society in order to qualify for a patent.
The patents issued by the USPTO are only available in the United States and U.S. territories. Be aware that patents are different from trademarks or copyrights, although they all fall under intellectual-property law. A trademark is used for branding purposes, as it helps distinguish your products from others and indicates their source. Copyrights, on the other hand, help protect books, music, graphic designs and other creative works.
What Does "Patent Pending" Mean?
The procedure for granting patents is extremely complex and can take years. However, you can let the public know that your patent is pending after you go through the application process. Many companies mention "patent pending" on the product packaging to notify their customers about it. Although you cannot legally stop others from using your invention in this stage, you do have some rights.
If a competitor files a patent that is similar to yours, the application that was first filed will have priority. For this reason, it's recommended to apply for a patent as soon as you validate your product idea. In the meantime, refrain from disclosing your invention or ask those who know about it to sign a nondisclosure/noncompete agreement.
To put it simply, "patent pending" simply means that you have filed a patent, and it has no legal effect. Even so, it can still benefit your small business by making it more appealing to potential investors and customers. Plus, it can be used as a marketing tool to show that your company is innovative. This may give you a competitive advantage and increase customer engagement.
Types of Patents
The USPTO provides three types of patents. Utility patents are the most common and may be granted to those who invent or discover new, innovative processes, machines and more. They may also cover the creation of improved products, processes or equipment. Some examples include new or improved medications, software programs, computers and manufacturing processes.
Design patents can be granted to anymore who creates new, unique ornamental designs for manufactured items. Unlike utility patents (which are valid for 20 years), design patents acquired after May 13, 2015 have a 15-year term from the filing date. Those issued before this date are valid for 14 years. The Statue of Liberty, emojis, fonts and ornamental designs on furniture are all examples of design patents.
The third category includes plant patents, which may be granted to botanists and other individuals who discover or create new plants capable of reproduction. The plant must be unique and have distinctive features, which have to be described in the patent application. Those who are interested in this type of patent must apply for it within one year of selling or releasing the plant.
Should Startups Seek Patent Protection?
This form of intellectual property may benefit businesses and the economy as a whole. Steve Jobs, for example, filed a patent for the Apple computer in 1980. The Gillette razor was patented in 1904. Today, these companies are famous worldwide for their originality and innovative thinking.
Patents not only promote innovation but may also strengthen your position in the market and increase brand awareness. They give your small business a competitive edge by preventing others from selling your invention. Furthermore, patenting can make it easier for your startup to get a loan and raise capital.
Say you are planning to manufacture and sell your invention yourself instead of licensing it to a third party. By filing a patent, you may have greater chances to attract investors because you can better justify your investment in manufacturing, marketing, design and other processes. If you decide to license your technology or products, you may use the patent as leverage during negotiations.
Another advantage of filing a patent is that you can charge more for your product as long as there is market demand for it. Since you're the only company offering that product, you may use it as a selling point and set a higher price. All in all, patenting is an investment. Although it may benefit your startup, it doesn't guarantee success or profitability.
How to File a Patent
Before you even start thinking about going through the patent process, make sure you have a solid business plan. If your product or service is superior to others and can fill a gap in the market, then go for it. Be aware, though, that not all inventions can be patented. Additionally, this process is expensive and time consuming, so you may need expert help, as only 300,000 out of more than 500,000 patent applications submitted to the USPTO each year are approved.
First, check the USPTO database to ensure that your idea hasn't already been patented and for patent information. Next, try to determine if your invention is patentable (use the USPTO database for this purpose). Generally, an invention must be new, useful and non-obvious in order to qualify. Certain subject matters, such as mathematical formulas, do not qualify for patent protection.
Decide what kind of patent you need before preparing and submitting your application. The USPTO recommends hiring a patent attorney or agent to assist you in this process. Also, be prepared to work with a USPTO examiner if your application is incomplete and requires changes. You can check its status online anytime.
How Much Does It Cost?
Filing a patent isn't free of charge. How much you will pay depends on the type of application, the number of claims and other factors.
The basic filing fee, for example, is $50 to $300 for small and microentities, but you may also need to pay extra for late filing, patent search, examination, maintenance, certificates of correction and more. Expect to pay at least $900 if you file the application yourself and anywhere between $5,000 and $10,000+ if you hire a lawyer.
On average, it takes about two years and three months from the filing date to get a patent. In some cases, it can take as long as three years. Try to see it as an investment in your business. Weigh the costs versus the benefits, consult an attorney and make a decision accordingly.
- Statista: Number of Patents Issued in the United States From FY 1999 to FY 2019
- United States Patent and Trademark Office: General Information Concerning Patents
- United States Patent and Trademark Office: Patent Process Overview
- Heer Law: The Benefits of Use of "Patent Pending"
- United States Patent and Trademark Office: 1505 Term of Design Patent
- Investopedia: Plant Patent
- Investopedia: Patent
- United States Patent and Trademark Office: USPTO Fee Schedule
- UpCounsel: How Much Does a Patent Cost: Everything You Need to Know
- Heer Law: How Long Does It Take to Get a Patent?