Ok – so at this point you’ve hopefully figured out whether your idea is an invention or if it’s still in the idea stage?You’ve also hired a Patent Attorney or done the homework yourself to confirm that your idea is patentable?
Seriously, doing the hard work to confirm whether your invention is eligible, patentable, and marketable, is MEGA important.
I can’t stress this enough. Ok – I’ve said my piece. Back to this article – but just in case you missed it, here is the link again. Believe me – you’ll thank me later!
Ok now let’s get to it! Let’s roll up our sleeves. And if you don’t have sleeves, crack your knuckles or something- it’s time to learn how to file a patent application.
First, I will go through exactly what you need to gather and describe in order to file your patent application. Then, in the final step (Step 13), I’ll go over how to properly submit the documents, so make sure you read all the way through!
Video of Process. Click Below to Watch! (highly recommended)
An infographic showing you the process. *Remember that the provisional patent application is for a utility patent application, but you must file a Nonprovisional patent application (within 1 year of filing the provisional) in order to claim the earlier-filed provisional patent application’s priority date. Also remember that utility patents are different from design patents. Design patents have their own filing and application process. (If you’re interested, you can check out the 10 steps to filing a design patent here).
Step 1: Reality Check: Understand the Risks of DIY
You are reading this article because you are a self-learner, a doer, and an action taker. I’m already smiling because I’m so proud of you, encouraged by you, and know you will find your way.
I felt that it was important to start this article out with this reality check:
Do you really want to spend your time/energy learning about how to write and draft a patent application instead of working on making your invention work better?
Or better yet…
Wouldn’t you rather be spending time/energy on starting and growing your business? Or at least making plans for how you will make money with this technology once it has been patented?
I’m asking these tough questions because I care.
A great analogy I have used in other articles and videos I’ve done is federal tax returns. Yes, you could very likely hop on TurboTax ® or some other H&R Block ® type product, and get your taxes filed…and perhaps even get it done cheaply, and legally! :)
But, did you get it done the “right way”? Did you get as many deductions as you could have? Do you think those hours spent pouring over books from the previous years, spreadsheets, W2s, 1099s, 1098s, INTs, DIVs, etc. was time well spent?
Hiring a Bookkeeper or CPA is the way I operate because, Yes, I could do it on my own if I wanted to…but I don’t want to! Nor should you (unless you are a budding bookkeeper/CPA of course :)…
That said before I totally step off of my soapbox here, I wanted to share a chart that I made with you Do-It-Yourselfers, and I think it lays out the pros/cons of not hiring a Patent Professional.
Do you Plan on Writing and Filing the Provisional Patent Application On Your Own?…. Think it over…
Step 2: Due Diligence: Perform Patentability Search & Opinion (PSO)
I think every inventor owes it to themselves to do a serious look before they leap into the years-long and thousands-of-dollars jump that is the patent process.
So, I won’t spell out what’s in the other articles much more than highlight the key areas that must be explored prior to moving forward:
Patent Eligibility: Determine Inventorship, Ownership, Subject Matter Eligibility as well as assure you are clear of any statutory on sale, or public use bars
Novelty: Confirm that your invention really is the first of its kind in the world
Non-Obvious: Assure that even if it’s one of a kind, that it is not just an obvious version of one of its predecessors or prior art
Utility: That there is present-day utility and benefit for at least someone or something out there
Again, if you haven’t done the research yet, and want to more MUCH more about patent searching, please visit my article on Patent Searching here.
Do you Plan on Doing the Patent Search on your Own?…. Think it over…
Step 3: Go or No-Go: Read & Analyze Results of PSO
Now, if you’ve hired a Patent Attorney to perform a top-notch worldwide patent and nonpatent literature search for you, and you now have not only the search results, but a Legal Opinion on what they recommend… this will be EASY.
… All you have to do is read the Patent Attorney’s analysis and opinion, and you should be able to quickly discern the likelihood of success your invention will have in getting a patent. And, you should get a sense as to what scope of rights might be feasible after the prior art has been laid out.
Now, if you didn’t hire the PSO to be done professionally, or worse yet, you didn’t do a search at all, you’ve got some hard work in front of you:
Compare the prior art (which is fancy for other publications or patents that are similar to your invention) to your invention and see what aspects/elements are similar to yours
Analyzing novelty (uniqueness) will be the most straightforward of the analyses – you will simply see if any publication has discussed your invention in its entirety. ** Don’t miss that – the prior art must explain your invention FULLY in order to act as novelty prior art (Section 102 art for us Patent Attorneys).
Analyzing nonobviousness is tricky even for Patent Attorneys to navigate through, so this will be foreign to many inventors, especially first-time inventors.
Now it’s decision time, that go-no-go, make or break moment. You have all the information in front of you (and hopefully a legal opinion to go with it).
Here are two KEY questions that will help to drive a solid business decision for you:
How different is my invention from the prior art?
Is that difference enough to warrant a significant market share?
If you answered that there is a significant difference that (based on some market research) will bring success in the market/industry – then you should proceed to step 4…otherwise, look to go back to the drawing board, and try again.
Step 4: Aim then Fire: Determine Most Novel Aspects of Invention
So, CONGRATS! You’ve made the decision to write your patent application. Right on! Now, in this section, I’m going to help you think about the most novel aspects of your invention and tell you what to do with them.
Based on the patent search and the legal opinion you had done, you now know what parts of your invention are most different from the current technology on the market and prior art. That’s what you want to grab onto and focus on in this section.
Let’s say you invented a new type of kitchen sink and faucet combination. If after performing the search, you found a LOT of prior art about the integration of the soap dispenser and the sink basin, as well as the screw-mounted faucet, but you didn’t find any prior art about the spray-nozzle being at the sink level and at the faucet. This combination of elements was not found in the prior art.
So, it’s this unique combination of elements that we should take EXTRA time on while we start to write the patent application. In contrast, you will NOT want to spend much time at all on the soap dispenser nor the screw-mounted facet aspects…because that’s not what is new!
Do this exercise for every part of your invention, and then you will be able to plan how to write your specification and drawings (see step 6-7).
Step 5: The Fluffy Stuff: Title, Background, Boilerplate
Yes, this is the time to prepare to write before you write. See! I’m all about the preparation :)
Pick a title, make it short and sweet, DO NOT GET LONG WINDED. The secret here is to be as generic as possible. Think about the least common descriptor language.
The background part is simple, just explain very briefly the problems that exist in the market or industry, explain the need for the invention you’ve come up with.
Do not, I repeat, do NOT say “Prior Art” in your background section or anywhere in the specification. It is a term of art that can have legal ramifications whereby you may be found to have admitted certain technology as actual prior art that could prevent or limit your scope of rights for certain elements.
Boilerplate language is available for different types of inventions. The best way to find this type of language is to search for well-written patents that are in your industry that have been issued. Shhhh, this is one of our tricks here too… you see, us Patent Attorneys learn from each other, naturally.
So, if you are inventing in software, you should look for patents that are assigned to or where the applicant is Amazon, Facebook, or Google. The same thing goes for other industry giants depending on the technology: Aerospace, try Boeing patents. Electrical, try Korry, etc.
How to find these patents? I would use either the USPTO search engine or Google Patents.
First, use Google Patents to find patent on “Propulsion” and put “Boeing” as the assignee
This section shouldn’t be more than 3-5 paragraphs.
Step 6: The Meat & Potatoes: Writing the Full Enabled Description
This is the part where you should HOLD NOTHING BACK! You want to be as thorough as you can in fully explaining your invention.
Take some time, explain in simple terms how someone in your area of technology would make and use your invention. This is actually a requirement, its called enablement, and you must, in the written description disclose your invention so that someone could make and use your invention from just the writing and drawings alone.
Describe every element of your invention, even fasteners, material types, and adhesives if it’s structural. If its a method or process, explain every minute step – think of how data transfers, what users see, what inputs are made, and where information is stored.
I also heartily recommend that you check out other patents in your industry if you’re trying to write this on your own. Do not copy and paste, but instead learn from their style of articulating the details.
The biggest tip I can give you about drafting the details is to break it down in the simplest terms possible, this way you won’t leave anything out. Imagine writing as if your Mom or Dad or even Grandparents had to get her arms around it and gain an understanding.
This section should be at least 8-10 paragraphs, even for the simplest inventions.
Step 7: Think Out of The Box: All Feasible Alternative Embodiments
Have fun in this section, now that you’ve done the hard work of explaining the full version of your invention in step 6, this section is about answering these kinds of questions:
What other industries could your invention be useful for?
What are some different types of mechanisms that could probably perform a similar function?
What other devices, systems, structure interface with your invention and how might your invention change if those also changed?
How might you change your invention (even slightly) so that it might be useful in other environments (water, weightless [outer space], hot/cold, etc.)?
You want to put these (sometimes way-out-there) versions of your invention in the provisional so that you have a very wide/broad base to claim priority to…you never know after you start producing/selling your invention, you might want to move in new directions or make changes to the design/function. So, the broader you are in this step, the better you’ll do for future iterations/versions down the road.
Also, many patents spawn child patents, called continuations, and these are separate patent applications that all make claim to the earlier filed provisional application – so even if there are multiple inventions in the provisional, it will serve you best to put them all in there.
Depending on how much energy you put into this… id say at least strive for 6-8 paragraphs of alternative embodiments.
Step 8: Get 3D: Figures Drawings/Pictures/Images
In a provisional application, you do not need formal patent drawings, so I love to encourage inventors to cut loose here and we will attach photos, images, and also produce clear sketches so that we can be sure to have a foundation for the core invention as well as other embodiments (as discussed in Step 7).
Don’t worry about the drawing is perfect, as long as it helps you show or explain the invention, it will suffice. If you do have a fixed design/shape already for your invention, it may make sense to go with CAD drawings to make sure you disclose the shape/proportions accurately.
Don’t forget to include flowcharts for method/process/software inventions – include system architecture as well as high/low-level flow diagrams showing step-wise what you have invented.
Once again, emulate from past successes, and use the USPTO website or Google Patents and find high-quality patents, see how those drawings were done, and attempt to emulate their style and form. Don’t forget that the patents you will see will be nonprovisional official patent drawings…your provisional drawings do not need to be that formal with the drawings, but your drawings should have the same type of information and capture the angles, geometry, and so on.
Step 9: Show and Tell: Detailed Description of Figures
A great way to expand the provisional application specification/written description is to elaborate (even slightly redundant) to fully describe the drawings, pictures, diagrams, and figures in words. Use descriptions of features, and reference the figure number while you are doing so, this will further provide the basis for the later nonprovisional and any continuations.
There are a lot of examples to pull from, but using that Boeing Patent example from earlier, you can see there are a lot of figures, and each one has been thoroughly (Even painstakingly described in this part)
Take at least 2-3 paragraphs to explain every detail of each figure.
Step 10: Look Ahead: One Independent Claim for Each Invention
This may seem odd to be drafting claims in a provisional patent application. And you’re right. Claims are NOT required on PPAs, however, some foreign jurisdictions do require that there be some claim language in order to seek priority back to a provisional. Therefore, we always encourage the drafting of one independent claim for each major inventive concept.
Some inventions are both apparatuses and methods of using that apparatus, and if you (after doing the search) confirm that both of those may be patentable, then you should draft two claims.
Step 11: Be Brave: Seek Confidential Reviews & Critiques
While my first recommendation is to of course, work with your Patent Attorney to assure their draft is being reviewed internally at the law firm. But if you are on your own and writing the application yourself ( as a non-Patent Attorney), you could seek to have your provisional draft reviewed by a Patent Attorney.
If you cannot afford or don’t want to have a Patent Attorney review it, you should confide in a close friend or colleague in the industry (under a confidentiality agreement) to get their feedback on the application.
If they are being honest, there is ALWAYS room for improvement…so be sure to encourage them to be completely honest with you, and that you would do the same for them if they were applying for a patent.
I encourage at least 2 independent reviews with 2-3 iterations each to get to a final draft stage.
Step 12: The Final Draft: Put it All Together
Once you’ve got your reviews and critiques back, now it is time to incorporate the edits and clean up your entire application.
This is the time to read over the entire application, assure that it reads and flows well – make sure you’ve got all of the steps checked off, and haven’t left anything out.
Now check the drawings, make sure everything is labeled just right, in the right order, and is properly referenced in the specification.
You learned how to get a patent for your idea in the How to Patent My Idea article and now you are ready for a patent application!
Ready to take steps towards filing a patent? You can book a free consultation with us to get professional guidance through the process described above. In addition, we will gift you with Bold Patents: The Inventor’s Guide to Patents book for FREE! (Click here to get started today!)
What did you think of the article? What questions do you have about filing your patent application? Please let me know in the comments below! I am here to help!
Legal Note: This blog article does not constitute as legal advice. Although the article was written by a licensed USPTO patent attorney there are many factors and complexities that come into patenting an idea. We recommend you consult a lawyer if you want legal advice for your particular situation. No attorney-client or confidential relationship exists by simply reading and applying the steps stated in this blog article.
Legal Note: This blog article does not constitute legal advice. Although the article was written by a licensed USPTO patent attorney there are many factors and complexities that come into patenting an idea. We recommend you consult a lawyer if you want legal advice for your particular situation. No attorney-client or confidential relationship exists by simply reading and applying the steps stated in this blog article.