You’ve invented a groundbreaking product, but fear copycats will steal your idea once it hits the market. Patents can help protect your business, though they’re not foolproof.
The US Patent Office granted 351,000 patents in 2024, almost twice as many as in 2000. This big jump shows the speed of innovation and the importance of protecting your ideas.
Despite challenges, patents remain the most robust tool for protecting intellectual property in the US. This guide will walk you through creating a successful patent application.
What is a patent?
A patent is a legal tool enshrined in the US Constitution to protect intellectual property. Specifically, a patent is a document that declares ownership of an invention, much like a deed proves ownership of real estate.
How do patents work?
The United States Patent and Trademark Office (USPTO) (2) issues patents in exchange for registration fees, and issuance grants the patent holder “exclusive rights.”
Exclusive rights allow the patent holder to “exclude others from making, using, offering for sale, or selling” the invention covered by the patent domestically or imported from overseas. While acting as a central clearing house for patent and trademark information, the USPTO doesn’t enforce patent rights. Those rights are enforced through the civil court system.
Infringement is a common challenge despite the protection of a patent. Patent infringement occurs when a third party makes, uses, sells, or imports a patented invention without the patent holder’s permission.
Patent holders must be prepared to enforce their rights through the legal system, which might involve litigation to get compensation or prevent further infringements.
Why get a patent?
A patent is a way to claim ownership of your invention. It gives you the right to stop others from copying, selling, or using your creation without your permission. But why go through all the trouble?
- Protection: A patent can keep copycats at bay and give you peace of mind.
- Financial opportunity: Your brilliant idea could lead to financial success. With a patent, you can sell your invention to companies, license it out, or even start your own business.
- Credibility: Having a patent shows you’re serious about your product. It can impress investors and make you stand out in your industry.
If you think your invention could be significant, getting a patent is worth considering. “You could have the best idea in the world, but if people then go and rip it off, the one thing you can do on the front end is try to protect yourself,” says Cassidy Caulk, founder of innovative shoe and accessories brand Kindred Label.
How to get a patent in 9 steps
- Determine if patent protection is appropriate
- Decide if your invention is patentable
- Conduct a patent search
- Determine what kind of patent you need
- Prepare to submit your application
- Submit your application
- Work with your patent examiner
- Get approved and pay the final fees
- Consider protection outside the US
Applying for a patent is one of the more complex processes for protecting your intellectual property. While it’s possible to do it independently, consulting a patent attorney to help you prepare and submit the filing may be beneficial. Here are the steps you’ll need to follow:
1. Determine if patent protection is appropriate
If you want to protect a creative work, seek a copyright; for brand names, logos, or slogans, apply for trademarks. If you want to protect an invention, a physical product, or a design, patent protection is the right route.
2. Decide if your invention is patentable
To be patentable, an invention must be:
- Patentable subject matter. Under Section 101 of the US Code (3), “patentable subject matter” includes any “process, machine, manufacture, or composition of matter” or “any new and useful improvement thereof.”
- Useful. A patent’s usefulness is easily proved—it must offer some functional purpose.
- Novel. A patent is not novel if it was known to the public before the applicant filed it.
- Non-obvious. A patent is non-obvious if inventing it requires some advanced skill that an ordinary person couldn’t replicate.
3. Conduct a patent search
Ensure your invention is sufficiently novel by investigating whether anyone else has a similar existing patent. You can run a patent search through the USPTO online.
4. Determine what kind of patent you need
Do you need to file a utility patent application or one for a design or a plant patent?
For utility patents, which are most common, you have two main filing options:
- Provisional Patent Application (PPA): Secures your filing date while you develop your invention further, but requires filing a full application within 12 months.
- Regular (Nonprovisional) Patent Application (RPA): The complete application that will be examined by patent offices.
5. Prepare to submit your application
Next, you’ll need to review the USPTO’s catalog of various patent registration fees (5), and timelines. At this stage, after ascertaining the complexity of your application, consider hiring a patent lawyer.
6. Submit your application
Use EFS-Web, the USPTO’s electronic filing system, to file your patent application online. Your application must contain all required parts (see the list below) and the appropriate fee. You can file either a regular patent application (RPA) or a provisional patent application (PPA).
A PPA allows you to claim “patent pending” status for your invention and is less complex than applying for an RPA. An RPA entails the complete patent examination process, explored below.
7. Work with your patent examiner
If your application is incomplete, the USPTO will notify you by mail of what’s missing. Depending on the deficiency, you’ll have a limited period to update your application. If you’re unable to correct or complete the application, the USPOTO will deny and return your application.
If the USPTO accepts your application as complete, it will assign it to an examiner, who will review it to determine whether it meets the legal requirements of patentability.
You’ll have opportunities to amend your application if the examiner finds you’ve failed to meet legal standards. After two rejections, you may appeal the examiner’s decision to the Patent Trial and Appeal Board (PTAB).
8. Get approved and pay the final fees
If the examiner determines your application is satisfactory, you’ll receive a Notice of Allowance from the USPTO. You must then pay an issue fee and possibly a publication fee before the patent is finally issued.
9. Consider protection outside the US
Protecting your invention in the US is important, but there's a big market outside the country, too. In 2023, people filed 3.6 million patent applications worldwide. New ideas are wanted globally.
If you plan to expand or make your product in other countries, consider using the Patent Cooperation Treaty (PCT). This lets you apply for patents in multiple countries with just one initial filing.
Eighty-five percent of patent applications are handled by just five offices: China, US, Japan, South Korea, and the European Patent Office. Getting international patent coverage can help you stay ahead of competitors and reach more customers.
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3 types of patents
Patents fall into three main categories, and it’s important to know the details of each so you can apply for the correct one:
Utility patent
Utility patents protect anyone who invents or discovers:
- A new and valuable process
- A machine
- An article of manufacture
- A composition of matter
- Any new and useful improvement of the above
Utility patents have a term of 20 years from the filing date and are considered more valuable than design patents because they cover the functional and structural aspects of an invention rather than just its ornamental features.
To file for a utility patent, you’ll need to do the following:
- Conduct a preliminary patent search.
- Prepare a specification describing the invention in detail.
- Draft claims that define the scope of protection.
- Create drawings or prototypes, if necessary, to explain the invention.
- Apply electronically through the USPTO’s Patent Center.
- Pay the required fees (filing, search, and examination fees).
An examiner will then review the application and conduct a search of prior art.
Design patent
The USPTO grants design patents to anyone who invents a new, original, ornamental design for an article of manufacture. This includes specifications for pieces of clothing, furniture, or consumer products.
A design patent protects an article’s appearance but not its functional features. It is granted for 15 years from the grant date and is typically easier to enforce against counterfeiters.
The application process is a bit simpler:
- Prepare drawings or photographs that clearly show the design.
- Write a brief description of the drawings.
- Apply electronically or by mail.
- Pay the required fees.
An examiner will then review the application for novelty and non-obviousness. The process is often shorter than that for utility patents.
Plant patent
The USPTO grants plant patents to anyone who invents and “asexually reproduces” any new variety of plant life. Asexual reproduction means you’ve produced the plant in some way other than through the germination of seeds—such as cutting or grafting.
A plant patent protects the entire plant. It excludes others from asexually reproducing, selling, or using the plant. It also has a term of 20 years from the filing date.
To apply for a plant patent, do the following:
- Provide a detailed botanical description of the plant.
- Include color drawings or photographs of the plant.
- Explain the origin or parentage of the plant.
- Describe how you have asexually reproduced the plant.
- Apply electronically or by mail.
- Pay the required fees.
A specialized examiner will review the application and look for the distinctness and newness of the plant variety. The patent office excludes tuber-propagated plants (e.g., potato plants) from plant patent protection.
💡 Tip: Inventors can often seek multiple patents for the same invention (e.g., utility and design patents). Consider getting professional assistance from a registered patent attorney or agent to successfully guide you through the patent application process.
Patent vs. copyright: Similarities and differences
Both patents and copyrights are legal tools for protecting intellectual property in the US and are devices of US federal law designed to protect intellectual property rights. Although they are both concerned with preserving the products of imagination, they are distinct in what they are meant to cover. While patents protect the ownership rights of inventions such as machinery, consumer products, or product designs, copyright protects ownership of creative works such as books, film, and art.
Patent checklist
Depending on what you want to patent and the type of patent you seek, your application should include:
- Patent description. A patent description should include your invention’s name, purpose, components or steps, how the components interact, or how the steps are enacted. It should also include instructions for the invention’s use, descriptions to accompany drawings, and the benefits or alternative uses.
- Patent drawings. Your application must include drawings or schematics unless it’s for a method, materials composition, or chemical compound. These should be straightforward enough that they can be interpreted by a layperson. The drawings must capture all views and angles and be sufficiently labeled with reference markings. You can create line drawings, charts, photographs, computer-generated graphics, or hand illustrations.
- Inventor information. You must identify yourself and any co-inventors in your application. A co-inventor is anyone who contributed to the conception of your invention. It’s essential to make these identifications to insulate yourself from any competing patent claims or lawsuits down the road.
What you can and cannot patent
Your invention must be new and not obvious to get a patent, but some products are simply not patentable. You don’t want to spend time and money on your application only to find out you never had a chance.
What you can patent:
- Inventions: New devices, machines, or processes that solve problems or improve existing solutions fall into this category. Think of groundbreaking technologies that change how we do things.
- Compositions: This covers new materials or mixtures. It could be an innovative plastic formula or a novel drug compound that treats a disease more effectively.
- Designs: A product’s unique appearance can be patented. This isn’t about how something works but how it looks.
- Plants: If you develop a new plant variety through breeding or genetic modification, you might be able to patent it.
What you can’t patent:
- Natural phenomena: Anything that already exists in nature is off limits. You can’t patent a newly discovered plant species or a mathematical equation you’ve uncovered.
- Abstract ideas: General concepts or theories not tied to a specific, concrete application won’t make the cut.
- Laws of nature: Fundamental scientific principles or physical phenomena are not patentable. These are considered fundamental truths of the universe, not inventions.
- Obvious improvements: Minor tweaks or changes to existing inventions that any expert in the field could easily come up with don’t qualify.
- Pure information: Lists of instructions or computer programs that are essentially just data aren’t patentable.
The role of a patent attorney
A patent attorney can help you get and protect a patent. They can tell if your invention can be patented and what kind of patent you need. “Patents are a whole other language,” Cassidy says. “I knew how to translate [my part of] that language to the patent attorney because I’d taken the time to really deep dive into shoe manufacturing and the shoe language.
An attorney can also write patent applications that follow all the USPTO guidelines. A minor oversight or poorly worded claim can leave loopholes for copycats to exploit.
They also:
- Handle all the paperwork. When the patent office asks questions or rejects parts of your application, your attorney can fix issues and appeal if needed.
- Protect your rights. If someone steals your idea, a patent attorney can help you take action against them.
- Plan for the future. They can help protect new versions or related ideas as your invention develops.
While you can file some patents yourself, the system is complicated and getting expert help increases your chances of success.
Maintaining your patent
After you get a patent, you still need to do a few things to safeguard it:
Pay your fees on time
For utility patents in the US, you must pay fees at 3½, 7½, and 11½ years. If you miss these payments, you could lose your patent protection. Design patents don't require these payments.
Watch out for copycats
The patent office won't look for people copying your invention. You need to check online stores, competitor products, and trade shows to find anyone selling something too similar to yours.
Decide when to take action
If someone copies your invention, you don't always need to sue them. Sometimes sending a warning letter can be a cost-effective way to prevent infringement, and sometimes letting it go might be the wiser choice.
Take Bitten Design, for example. “We own the worldwide patent for the mustache pacifier, but if you go and look on the internet and type in ‘mustache pacifier,’ there’s a load of copies,” says Al Cuttell, Bitten Design’s co-founder. The Bitten team believes legally stopping dozens of companies from copying their products isn’t feasible.
“We don’t want to spend time in such a negative way,” Al says. “We look at other companies who copy our products, and sometimes it’s quite nice because you realize that you’ve done something good that other people want.”
Think about licensing
You can let other companies pay you to use your invention. This gives you income without having to make and sell everything yourself.
Selling your patented product
Securing a patent for your product is the first step to getting it out worldwide. The real challenge lies in successfully commercializing it, which is where ecommerce platforms like Shopify come into play.
With Shopify, you can create a beautiful online store to sell your newly patented products. With secure payment processing and inventory management tools, Shopify simplifies the process of bringing your innovation to market.
How to get a patent FAQ
Can you license an idea without a patent?
You can license an idea without a patent through confidentiality agreements and trade secret protections. However, this approach offers less legal protection than a patent and relies heavily on maintaining secrecy.
How do I legally own an idea?
Legally owning an idea typically involves securing intellectual property rights through patents, copyrights, or trademarks. For inventions, filing a patent application is the most common way to establish legal ownership of an idea.
How much does it cost to patent an idea?
USPTO registration fees can be as much as $900, depending on the type and scope of the patent. Examination fees are about $220 on top of that.
If you use patent lawyers, the cost of patenting a relatively simple invention, such as a small consumer product or hand tool, is between $8,500 and $12,000. For example, Kindred Label founder Cassidy spent about $10,000 per patent and nearly two years finalizing each one.
What is the best way to patent an idea?
The best way to patent an invention is to hire a specialized attorney to guide you through the patent process. Alternatively, you can consult the USPTO’s guidance documents to prepare your application.
Can you patent an idea yourself?
You can patent a product that results from an idea yourself, but you cannot patent the idea itself. However, the patent application process is arduous and complex, and if you have the financial means, you may want to hire a patent attorney to assist you.
How long does a patent last?
A utility patent lasts 20 years, but you must pay maintenance fees at intervals of three, 3½, seven, 7½, 11, and 11½ years.
Is it hard to patent an idea?
Patenting is a demanding and time-consuming process. Because of the complications of the patent filing process, even for provisional patent applications, it’s easy to make mistakes or leave out crucial information. Preparing a USPTO patent application requires great care and attention to detail, and advice from a legal expert is often beneficial.
