King Patent Law, PLLC

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The Patent Process

The process of getting a patent is not fast unless you qualify for expedited processing, which is not easy.

It normally takes several years to go from submission of the application to approval and issuance of the patent. That can be frustrating. 

There are some good things that happen right away when you submit an application, however:

  • you can put “patent pending” on the invention, which investors like to see,
  • your application is in the USPTO database of patent applications, meaning it should block any later-filed applications that would infringe on your rights from being approved, 
  • you can disclose or discuss your idea publicly with less risk, and
  • you can publish research with less risk.

Step 1 - Is the Invention Patentable?

If you’ve come up with a great idea for an invention, you might be able to protect it with a patent so no one else can make or sell it without your permission, but not every great idea can be patented.

We can help you figure that out, and there are other ways to protect something that can’t be patented.

Step 2 - What Kind of Application?

In the US, there are three types of patent applications:

  1. Design application, for how something looks,
  2. Utility application, for how something works, and
  3. Plant application, for a certain new type of plant. These are uncommon.

A utility application can be provisional or non-provisional.

  • The non-provisional application is the full application that gets examined and may become a patent.
  • A provisional application is an optional first step if you aren’t quite ready to file the full application but want to reserve your place in line.

We help you determine which kind of application is right for you.

Step 3 - Drafting and Submitting the Application

For a non-provisional utility application, you need to provide a complete description of your invention, how it works, and why it’s unique. This includes any drawings, detailed explanations (specifications), and legal claims that outline what part of your invention is new and what you want to protect. A provisional utility application doesn’t have to have the legal claims and can have less detail. A design application is much more simple. No Prototype Needed: You don’t have to build a model of your invention to apply. In fact, prototypes or models are rarely allowed.

Step 4 - "Prosecuting" the Application - USPTO Review

It can be at least 18 months before the examination starts, then it can be years of back-and-forth with the examiner before a final decision happens.

If things go completely smoothly, which is rare, you may get your patent in about 2 years from filing.

If you’ve qualified for and paid the USPTO more for faster processing, that can help, too.

Step 5 - International Applications

Filing and application only in the U.S., or receiving a U.S. patent, DOES NOT provide any protection beyond the borders of the U.S.

A U.S. patent can help prevent the import of infringing items if you register the patent with U.S. Customs and Border Patrol, but it won’t prevent someone in China from making and selling a knockoff within China or to another country, and you won’t be able to do anything about that kind of piracy unless it reaches the shores of the U.S.

Therefore, you may want to apply for international protection.

There are a few different ways to go about that, but all of them require you to file fairly soon after you file the US application.

Step 6 - Issuance and Maintenance

Once an Examiner has determined an application is worthy of issuing as a patent, it is officially “allowed,” and the applicant must pay additional fees by a certain date in order for the patent to be officially issued.

For utility patents, you must pay maintenance fees at 3.5, 7.5, and 11.5 years after your patent is issued to keep your rights active for the entire life of the patent.

Design patents do not have maintenance fees.