How To File Patents

The way you file a patent is by filling out an application and submitting it to the United States Patent and Trademark Office for a fee. Of course, patent applications are not like job applications or credit card applications. This is where you explain your invention in gross detail and have it meticulously examined by people with scientific and/or legal training. Thusly, you want to ensure that your patent application is rock solid. No corners cut.

The first thing to be mindful of when filling out your patent application is making sure you use the right legalese. Most people know that lawyers speak differently about legal matters than the way they talk in passing, and this is crucial for your patent application. Accordingly, you cannot expect to “set aside a night and bang it out.” Your application’s chances of being approved hinge greatly on how well-written it is.

Here’s a good example the good folks at About.com offer to help weary inventors:

You might want to describe your invention with language like, “Part A is nailed to part B.” However, this is actually very weak from a legal perspective. Why, you ask? Well, how hard would it be for someone else to apply for essentially the same patent with wording like, “Part A is glued to Part B?” Not hard at all. In fact, it happens all the time.

Instead, you want to shoot for something like “attached” or “attached by various fasteners.” This type of language broadens the scope of your patent. It helps protect against knock-off artists who would capitalize on your invention by changing trivial words to appear unique.

Another daunting part of the patent filing process is that unlike most applications, the most complex parts have no pre-made spaces for you to fill in. Instead, you as the inventor will be staring at blank paper that you must fill yourself. What will you fill it with? Let’s ask Eugene K. Quinn, patent law professor and founder of IPWatchdog.com:

“…without some identifiable embodiment of the idea there can be no intellectual property protection.”

In this case “identifiable embodiment” often means a drawing. You or someone you know and trust will need to draw your invention and include the sketch with your application.

In general, applying for a patent without the help of an attorney is not recommended. The nuances and subtleties of the USPTO are enough to spend a lifetime studying, and that is precisely what patent attorneys do to ensure that applications they submit are airtight. However, if you do choose to go it alone, here is what you will need.

1) A written document that includes a specification and claims. A specification is where the inventor describes, illustrates, and/or discloses the inner workings of the invention in enough detail that someone experienced with the field could understand what it is. Claims are the part of the application where you specifically state what the invention is and is capable of doing. Claims, in the words of one attorney, literally “define the invention and what it is.” What you put in the claims is what patent law will protect.

2) A drawing of the invention. It is important that this drawing mirrors as closely as possible the actual way in which your invention will function and be used. Any discrepancies here can be used by competitors or litigators to try and invalidate your patent.

3) The filing fee. There is a fee when you apply, another fee when the patent is issued, and regular maintenance fees thereafter.

At a bare minimum, this is what your patent application must include. However, other steps can and should be taken to solidify it. One important consideration is proving that you were the first to conceptualize your idea. This is because United States patent law is based on the “first to invent” rule, whereby the first person to reduce an idea to a working prototype or clear description has rights to it.

So how can you prove that you were the first? The most surefire way is to keep a well-documented log of your records, including detailed test results and a sequentially ordered set of steps you took to reach your idea. Such material proves that your involvement with the idea began at a certain time and continues to the present day.

Be warned however that the alleged “poor man’s patent” of mailing yourself your idea does not work and will not stand up in any court. Instead, visit this URL on how to set up a good legally admissible log book.

In short, you need to be aware that preparing and filing a patent application is a serious, time-consuming process. You should attempt it only after a thorough consideration of all that will be required of you.

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