The U.S. Patent and Trademark Office (USPTO)

How to Patent an Idea - US Patent
Getty Images/Don Farrall

In order to get a patent or trademark or to register a copyright in America, inventors, creators, and artists must apply through the United States Patent and Trademark Office (USPTO) in Alexandria, Virginia; in general, patents are only effective in the country for which they are granted.

Ever since the first U.S. patent was granted in 1790 to Samuel Hopkins of Philadelphia for "making pot and pearl ashes"—a cleaning formula used in soapmaking—over eight million patents have been registered in at the USPTO.

A patent gives an inventor the right to exclude all others from making, using, importing, selling, or offering to sell the invention for up to 20 years without the inventor's permission—however, a patent is not required to sell a product or process, it simply protects these inventions from being stolen. This gives the inventor the opportunity to produce and market the invention himself, or license others to do so, and to make a profit.

However, a patent does not guarantee monetary success by itself. An inventor gets paid by either selling the invention or by licensing or selling (assigning) the patent rights to someone else. Not all inventions are commercially successful, and in fact, the invention may actually cost the inventor more money than he or she makes unless a strong business and marketing plan is created.

Patent Requirements

One of the most-often overlooked requirements for submitting a successful patent is the cost associated, which can be very high for some people. Although fees for the patent application, issue, and maintenance are reduced by 50 percent when the applicant is a small business or individual inventor, you can expect to pay the U. S. Patent and Trademark Office a minimum of about $4,000 over the life of the patent.

A patent may be obtained for any new, useful, unobvious invention, though it generally cannot be obtained for the laws of nature, physical phenomena, and abstract ideas; a new mineral or a new plant found in the wild; inventions useful solely in the utilization of special nuclear material or atomic energy for weapons; a machine that is not useful; printed matter; or human beings.

There are specific requirements for all patent applications. An application must include a specification, including a description and claim(s); an oath or declaration identifying the applicant(s) believing to be the original inventor(s); a drawing when necessary; and the filing fee. Prior to 1870, a model of the invention was required as well, but today, a model is almost never required.

Naming an invention—another requirement of submitting a patent—actually involves developing at least two names: the generic name and the brand name or trademark. For example, Pepsi® and Coke® are brand names; cola or soda is the generic or product name. Big Mac® and Whopper® are brand names; hamburger is the generic or product name. Nike® and Reebok® are brand names; sneaker or athletic shoe are generic or product names.

Time is another factor of patent requests. In general, it takes the 6,500 employees of the USPTO upwards of 22 months to process and approve a patent application, and oftentimes this time can be longer since many first drafts of patents are rejected and need to be sent back with corrections.

There are no age restrictions on applying for a patent, but only the true inventor is entitled to a patent, and the youngest person to be granted a patent is a four-year-old girl from Houston, Texas, for aid for grasping round knobs.

Proving an Original Invention

Another requirement of all applications for patents is that the product or process being patented must be unique in that no other similar inventions have been patented before it.

When the Patent and Trademark Office receives two patent applications for the same inventions, the cases go into an interference proceeding. The Board of Patent Appeals and Interferences then determines the first inventor who thus may be entitled to a patent based on the information provided by the inventors, which is why it is so important for inventors to keep good records.

Inventors can make a search of patents already granted, textbooks, journals, and other publications to be sure that someone else has not already invented their idea. They can also hire someone to do it for them or may do this themselves at the Public Search Room of the U.S. Patent and Trademark Office in Arlington, Virginia, on the PTO web page on the Internet, or at one of the Patent and Trademark Depository Libraries across the country.

Similarly, with trademarks, the USPTO determines whether there is a conflict between two marks by evaluating whether consumers would be likely to confuse the goods or services of one party with those of the other party as a result of the use of the marks at issue by both parties.

Patent Pending and the Risk of Not Having a Patent

Patent Pending is a phrase that often appears on manufactured items. It means that someone has applied for a patent on an invention that is contained in the manufactured item and serves as a warning that a patent may issue that would cover the item and that copiers should be careful because they might infringe if the patent issues.

Once the patent is approved, the patent owner will stop using the phrase "patent pending" and start using a phrase such as "covered by U.S. Patent Number XXXXXXX." Applying the patent pending phrase to an item when no patent application has been made can result in a fine from the USPTO.

Although you do not need to have a patent to sell an invention in the United States, you run the risk of someone stealing your idea and marketing themselves if you do not get one. In some cases, you could keep your invention a secret like the Coca-Cola Company keeps the formula for Coke a secret, which is called a trade secret, but otherwise, without a patent, you run a risk of someone else copying your invention with no rewards to you as the inventor.

If you do have a patent and think someone has infringed on your patent rights, then you can sue that person or company in federal court and get reparations for profits lost as well as claim their profits from selling your patented product or process.

Renewing or Removing Patents

You can't renew a patent after it expires. However, patents may be extended by a special act of Congress and under certain circumstances, certain pharmaceutical patents may be extended to make up the time lost during the Food and Drug Administration's approval process. After the patent expires, the inventor loses exclusive rights to the invention.

An inventor probably wouldn't want to lose patent rights on a product. However, a patent may be lost if determined to be invalid by the Commissioner of Patents and Trademarks. For example, as a result of a reexamination proceeding or if the patentee fails to pay the required maintenance fees the patent may be lost; a court may also determine that a patent invalid.

In any case, each employee at the Patent and Trademark Office takes an oath of office to uphold the laws of the United States and are prohibited from applying for patents themselves, so you can be sure to trust these individuals with your new invention—no matter how great or stealable you may think it is!