The Patent Application Process

Step 1: Search To See If Your Invention Has Been Patented Already

  • In order to obtain a patent, your idea must not have been patented in the past. You can search the USPTO database here to see if another party already has patent protection on your idea. If there is a patent already existing for your invention, then it doesn’t necessarily mean that you will not be able to move forward in the patent process. If there’s already a patent out for your idea, but you have a process that makes it faster, cheaper, better, etc. then the patent examiner may declare that you deserve a patent as well.


Step 2: Figure Out Which Type Of Patent Application You Are Filing

  • There are three types of patents that can be filed: utility patents, design patents, and plant patents. Utility patents are the most common and are issued for the invention of a new and useful process, machine, manufacture, or composition of matter, or for an improvement on any of those. A design patent protects the way that an invention looks aesthetically, including its shape/configuration, or the surface ornamentation. A plant patent is issued to an inventor who has discovered/invented and reproduced a distinct and new variety of plant (not a plant found in an uncultivated state). Once you’ve decided which patent you would like to file, you can move on to step 3.


Step 3: Determine Which Filing Strategy You Want To Use

  • Figure out if you need international protection on your invention, or if you just need to file within the U.S. If you need international protection, head over to the USPTO’s website and view the various patent cooperation efforts between countries and what can be done to protect your invention globally. If you determine that you only need protection within the U.S., move on to step 4.


Step 4: Decide What Type Of Patent Should File (For Utility Patents Only)

  • There are two different types of utility patent applications, provisional patent applications and nonprovisional patents. A provisional application for patent is a less expensive way to begin protecting your patent while you figure out the details of your invention. Basically, a provisional application for patent establishes a priority filing date if another non-provisional patent application for the same invention is filed within a year. Once the provisional application for patent is filed, you will have exactly 12 months in order to file a nonprovisional application for the invention. If a nonprovisional patent application is not filed within that timeframe, then the patent is regarded as ‘abandoned’ and you lose the right to the priority filing date. Only the nonprovisional patent will protect your invention within court.


Step 5: Consider The Use Of Expedited Examination

  • The USPTO offers a few expedited examination programs such as the Track One procedure and the Patent Prosecution Highway. Though these programs do involve an added fee to your application, they allow for a final disposition on your patent within twelve months (whereas the typical first substantive review and examination is about 21 months).


Step 6: Pick Who Should File The Application

  • You can either file an application yourself (and consider using the USPTO’s pro bono program), or hire an attorney or licensed patent agent to file the patent for you. It is highly recommended to use a licensed professional to help you file your application, as they know how to efficiently navigate the application, and can also find ways to streamline the process. Speak to a patent attorney today to see what they can do to help you.


Step 7: Prepare For Filing

  • First you should determine the fees involved with your patent application. The total cost for a patent can vary drastically depending on the complexity and nature of the invention. Once you’ve figured out what the total cost in fees will be, you will want to apply for a customer number with the USPTO. This number allows you to associate all of your filings to a single mailing address and give you access to your patent application information.


Step 8: Apply For Your Patent Using The USPTO’s Electronic Filing System

  • Use the USPTO’s web-based patent application submission service, EFS-Web, to file your patent online.


Step 9: The USPTO Will Examine Your Application

  • During this time, the USPTO will conduct formalities reviews, and lets you know of any issues within your Official Filing Receipt. Then they assign your patent to a Class/Subclass as well as a Technology Center who dockets the case to the examiner. The application will then be published and the examiner will process the requests via filing date order. After a substantive examination of the application is conducted, the examiner will notify you of a decision. If you would like to check the status of your application, you can follow the steps here.

If the examiner approves your patent, move on to Step 11.

If the examiner denies your patent, move on to Step 10.


Step 10: File A Request For Reconsideration

  • If your patent isn’t approved though the initial substantive examination, then you may file a request for reconsideration through the USPTO. This is an appeals process, which enables a reexamination of your proposed patent. If the objections and rejection of the examiner are resolved, then the USPTO will send a Notice of Allowance to you as well as the fees that will be required to push forward.


Step 11: Pay The Issue Fee and Publication Fee

  • After the examiner approves your patent, you will need to pay the issue and publication fees to the USPTO. After the fees have been paid, the USPTO will formally grant your patent!


Step 12: Don’t Forget To Pay Your Maintenance Fees

  • Maintenance fees will be due 3 ½, 7 ½, and 11 ½ years after the patent is granted. For more information about these fees, please consult the USPTO’s website.


Additional Resources:

Need advice?
Revised: May 16, 2022, 7:38 a.m.
Go Back