Before You Patent

Here are five steps to take before seeking a utility patent.

Understand what a patent does.

A patent is a grant to an inventor that allows the inventor to monopolize the manufacture, use, sale and importation of an invention. This right lasts a limited time (currently 20 years after the application date) and gives the patent owner the right to recover damages in a lawsuit against an infringer.

Keep a record of your invention.

Record every step of the invention process in a notebook carefully. Describe and diagram every aspect and every modification of the invention, including how you came up with the idea for it. Depending on the invention, you may also need to build and test a prototype. Document all of these efforts. Sign and date each entry and have two reliable witnesses sign as well.

If you want help in your keeping records, The Inventor's Notebook, by Fred Grissom and attorney David Pressman (Nolo), contains ten worksheets to guide you in recording the critical details of your invention.

Make sure your invention qualifies.

You cannot get a patent just on an idea. You need to be able to show how your invention works. And of course, your invention must be new. This means it must be different in some important way from all previous inventions. And your invention cannot be for sale or be known about for more than a year before you apply for a patent. To learn more, see Qualifying for a Patent FAQ.

Assess the commercial potential.

Applying for a patent should be a business decision. Even without using a patent attorney, it costs over $2,000 in fees to file and obtain a patent from the U.S. Patent and Trademark Office (USPTO), so you want to make sure it's worth it. Before you spend the time and money to file a patent application, you should research the market you hope to enter. Make sure that something sets your invention apart from the other products already in the field and that there is a real demand for the product. Keep in mind that only a small percentage of inventions ever earn money.

For a list of marketability factors you can use to analyze the invention's potential, and for ways to improve your invention's commercial potential, see Patent It Yourself or Patent Pending in 24 Hours, both by attorney David Pressman (Nolo).

Do a thorough patent search.

To make sure your invention is new, you need to search all of the earlier developments in the field of the invention. This involves searching U.S. (and sometimes foreign) patents, as well as other publications like scientific and technical journals, to find related inventions. For more information, see Patent Searching Online.