This page discusses basic patent law, the patent process, and intellectual property concepts that an independent inventor should know before contacting Avery Enterprises (or anyone else) about a patent. This information is not specific legal advice; if you have a specific question about your situation, contact us and we can decide whether patent help or highly technical writing help would be better for your situation.
In The Beginning
Before beginning any serious attempt to get a United States patent for your invention, you must be familiar with what has already been done with respect to your idea. One way to get familiar is to use a search engine like Google. While you search, pay particular attention to how your idea differs from everything you find, as these differences must be explained in detail in your patent application. Note all the differences you can, even those that seem trivial.
Note that your invention must be “new”, “not obvious” and “useful.” The “useful” standard is generally easy to meet; it’s useful if you can explain what it does in 10 seconds or less.
The “new” standard is often harder to meet. It clearly can’t be the same invention as someone else’s, but this is not enough. Your invention must not only be “new” as in, “I don’t see it on Google or in the database of United States patents”, but must be “new” in the sense of, “it’s been less than a year since I told anyone about my idea or showed it to anyone.” If you told a buddy at work about your idea more than a year ago and then showed him your prototype, that may be enough to keep you from getting a patent. The “new” aspect of an invention can get complicated as to what is “new” and what is not, which is one reason to hire a patent professional like Avery Enterprises who is familiar with the ins and outs. If your idea has been done already, patent people will tell you it’s “prior art.”
For example, you can’t patent a game you played as a kid that you’ve never seen in a toy store since, since you have to disclose this knowledge to the Patent and Trademark Office, who will tell you that it is an “old” idea and therefore not eligible for patent protection.
Your invention must also be “not obvious”, meaning that “an ordinary person with average skill in the art” couldn’t reasonably think of it just by looking at what already exists. For example, if someone patented a yellow car, your idea of a blue car would be considered “obvious”, because changing colors would be an obvious thing for a skilled carmaker to do. Would adding a microwave oven to a car be considered “obvious”? The answer to that could get complicated, another reason to talk to a patent professional who can help evaluate your idea. The fact that we’ve now mentioned the idea on our web site may mean that even if a car microwave isn’t obvious, the idea may not be “new” any more. [See what we mean?]
The Patent Search
If after all of this, your invention is useful and new and not obvious (all 3!), the next step in the application process is to let Avery Enterprises do a patent search. Our search fee, which is discounted if we write the patent application for the invention afterward, includes a patent report containing:
- the categories of already-issued patents we searched,
- the categories of past patent applications we searched (including those not granted a patent),
- a reference list of patents and patent applications that look most similar to your invention,
- a brief analysis of how each reference in the reference list relates to your invention,
- our official opinion of whether your invention is patentable,
- whether we think a patent application would be worthwhile (sometimes we don’t!), and if so,
- an idea of how the patent application should be written to give you maximum patent protection and profit potential.
If it looks like your invention may be patentable, we can file your patent application with the United States Patent and Trademark Office for you (and even in foreign countries if it seems worthwhile to do so).
What’s a Provisional Patent Application?
In some cases, it may be a good idea to write a provisional patent application first. A provisional patent is less expensive for us to create, because less material is submitted. It also has smaller filing fees with the Patent Office, because they don’t examine provisional applications except to see that we followed the submission rules properly, and thus a provisional patent filing is always granted.
Once submitted, the date of filing the provisional patent application becomes a “filing date” that begins a 1-year time period, during which you can continue to develop your idea and see if the idea has a chance of making enough money to justify the cost of a non-provisional (or “regular”) patent application. After filing a provisional patent, you may put the phrase “patent pending” on your invention, which is cool by itself. Your patent pending status lasts through your non-provisional application process (if you file one) but does eventually stop unless your patent issues (or is granted) in the end.
What’s a Non-Provisional Patent Application?
Before the 1-year period above is completed, you must decide whether to submit a non-provisional patent application. We will give you our advice about that based on your experience during the year, and then we will tell you our fee to write a non-provisional utility patent application before we begin the patent drafting process. (A utility patent is for something useful and is what is needed by the vast majority of inventors.)
How much will this cost me?
Our fee is based on an hourly rate that is about one-fourth the rate of many Colorado patent attorneys. But you will still have some 4-figure legal bills ahead of you, as you pay us to write the non-provisional application (which is in more depth, adds your new ideas, and takes longer to create than a provisional) and then pay the Patent Office filing fees for them to examine it. The most cost-effective approach is for Avery Enterprises to write the non-provisional patent application and then contact a patent attorney (for licensing, contracts, royalties, etc.) after your patent is issued (generally 1-3 years after filing), as patent agents are not allowed to dabble in those things.
If you receive a utility patent, congratulations! (Most people don’t; just a heads-up.) After you get the patent, you will pay more money to the Patent Office to publish it, and then in future years, still more money to them to “maintain” your patent during the patent’s lifespan of about 20 years. If you don’t maintain it, the patent “expires” and becomes open for anyone to use without paying you. So you can see that using the U.S. patent system may not be for the impatient, the faint-of-heart, or the undercapitalized.
Any final advice for me?
If you have not read our other webpage about patents, please do so now.
Note that we are patent agents only. If you need a trademark application, biology/biotech/chemistry patent, or a design patent (for something that looks cool and unusual but doesn’t have much function other than that), please contact a law firm or patent attorney.