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Preparing to File Your First Patent

By John R. Platt

Filing your first patent application is an important milestone for any engineer or scientist. Think about it: your name is going to be registered with your invention, and anyone who later builds their ideas upon your invention will forever need to cite you as an influence.

Patents not only help make you look good, they also protect your ideas and ensure that you or your company can profit from their use. That's why it's important to do a good job when you file your patent applications, so you can make sure that your claim is not rejected by the U.S. Patent and Trademark Office (USPTO).

With that in mind, here are a few tips toward making sure that your patent application is the best that it can be, and that your patent gets through the process unscathed.

1. A Few Patent Basics

As an engineer, you're probably going to be filing for a Utility Patent, which, according to the USPTO, covers "any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof."

This means you can patent a new device, a component of a device, a piece of code or software, or a technical process that accomplishes an end result.

The USPTO offers inventors a means of protection from others using their idea in this country or implementing it outside of the country, then importing it back into the U.S. (The USPTO does not actually enforce patents; it only gives you the right to exclude others from capitalizing on your own creations.)

You may need to patent your ideas in other countries as well to afford yourself full protection. That could be a very long an arduous process, one best accomplished with legal aid.

Patents generally last for 20 years, and can sometimes be extended. This means your invention falls into the public domain 20 years after the patent is issued, so you have a limited time to fully commercialize it and earn what you can.

2. You're Excited, but Keep Your Idea to Yourself

Yes, your new invention could change the world, but until you file your patent application, you don't want to be talking about it too much.

The USPTO maintains very strict rules about divulging new ideas -- in fact, as soon as you talk about it to someone or give them a demonstration, a one-year countdown begins, after which you can no longer file for a patent.

So if you are going to show it to someone, especially an investor or another technical consultant, or even your family, make sure you have a non-disclosure agreement in place.

There is a partial solution to this. A few years ago, the USPTO gave inventors the ability to file a low-cost "provisional patent," which allows them to say an invention is "patent pending." But even with this option, you still have just one year between when you file for a provisional patent and when you must file your full patent application.

3. You're Probably Going to Need a Lawyer

You don't always need legal representation when your prepare a patent application, but it does help.

It also comes with a hefty price tag. A patent attorney could cost $5,000 to $10,000 to take you through the entire patent process.

Obviously, if you're working for a company, their legal team will cover this. But if you're on your own, it's a different matter. Some people will tell you that you can file a patent without an attorney, but that probably depends on a number of factors, including the complexity of your invention and how much prior art exists.

4. Prior Art

No matter how ground-breaking your invention may be, chances are high that it is based upon at least some ideas already in use. Any patent application should include examples of these earlier inventions as "prior art" -- either earlier patents or research publications.

Patent examiners have a tendency to reject patent applications that do not cite prior art. Therefore, searching for prior art is not just important, it's essential to the process.

Sometimes you can do this yourself, but you may need to hire a patent search firm. Fees vary, but tend to run between $300 and $600.

5. More Fees

Yes, the patent process is expensive. In addition to your basic, up-front filing fees, the USPTO charges several other fees at various points in the examination process. There's a search fee, an examination fee, and, finally, an issue fee. Yes, once your patent gets to the point where it could be approved, you have to pay the largest fee of all in order to actually get it approved.

And after all of that, you must also pay to keep your patent active. Patents last for 20 years, but you must pay maintenance fees at the 3.5, 7.5 and 11.5 year marks in order to keep them in effect.

Again, if you're working for a big company, these fees are probably pocket change, and a worthy investment in insuring long-term profitability. But they are harder for individuals or smaller corporations, which is why proper funding is essential.

6. Further Reading

Several books offer to walk you through the patent process. Here are three of the best. If you're going to file a patent in the future, consider them must-reads.

  • Patent It Yourself by David Pressman (ISBN 1413305164, NOLO, $49.95)
  • Intellectual Property Law for Engineers and Scientists by Howard B. Rockman (ISBN: 978-0-471-44998-0, Wiley-IEEE Press, $99.95)
  • Patents and How to Get One: A Practical Handbook by U.S. Department of Commerce (ISBN 0486411443, $4.95)

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