While filing a patent application is not difficult, it’s also not as intuitive as one might think. The patent process is filled with pitfalls and mistakes that you can easily make if you’re not careful. If you don’t want to end up with a worthless patent or have your application rejected, make sure you avoid these mistakes.
1. You don’t know what a patent is for
A patent is a document that gives its owner the legal right to stop others from making, using, or selling certain inventions. A patent idea gives the owner of the patent the right to stop others from making, using, or selling a new product or method for up to 20 years.
Patents are similar to copyrights and patents cover inventions that are useful. However, instead of the general idea of copying something and making profits from it, patent owners protect specific ideas. Also, unlike copyrights, patents give the owner of the patent the right of exclusion-right — just the right to exclude other people from using, selling, or making specific things with, or based on the patent.
While patents can provide a lot of control over new inventions, they price them out of the market. That is because patents can be quite expensive to apply for and, in some cases, very expensive to pay. They can even be quite complicated to apply for and manage. During patent applications, lengthy requirements and documents or even multiple consultants are required to understand the application and the patent application process. If you don’t do your homework before applying for a patent, you can spend a lot of time and money on something that will probably be rejected or will probably end up giving someone a lot of trouble.
A lot of the time, the companies that pay the most for patents don’t actually produce anything useful. They just buy patents so they can protect their exclusive rights in their products.
Sometimes, inventions are so important that a company will pay very high prices for them. For example, in 2019, Amazon paid US$24.8 million for a patent covering its “store and organize products on digital platforms”.
During the patent applications process, large patent companies attempt to influence the outcome by injecting a lot of resources into the documents. They might buy an entire patent, assign lots of intellectual property to employees, or even hire entire consultancies to serve as their “patents lawyers”.
2. You think filing a patent is easy
I’m going to let you in on a little secret about patents: they’re not as easy to get as you may think. Even if you come up with a product that’s great and does everything you want it to do, you won’t be able to file for a patent until you have a working prototype.My understanding is that if you have a functioning product, you can go ahead and file a patent, but beyond that, you are an untouchable.
Given the long process and the hurdle of having to actually build the thing, it’s important to keep in mind that when you’re choosing a type of manufacturing to use for your invention, you have a lot more to consider than just the type of machine.
Now that you understand the challenges that come with applying for a patent, let’s take a look at a few mistakes you can make.
Patents can be tedious. In fact, many start out very difficult because, prior to 2012, patent applications were not indexed in the U.S. Patent and Trademark Office’s (USPTO) electronic system for filing. That means your invention would have to be filed by hand somewhere. This might not sound that difficult, but in the days before online filing, the process could easily drag on for days or even months.
Even today, patent applications are often spread across multiple sheets of paper or needed to be filed a certain way in order to get your application accepted into the patent office’s inventory. While you might think that once your invention is patented you’re done, you are only at the beginning. Right after your patent application is filed, it must be published in a journal or presented at a national or international meeting if it is to be eligible for either an initial patent or an international patent.
While everything is now digital, this is still a tedious process that every patent lawyer has to go through.
Another mistake that could lead to losing a patent is to rush your application.
3. Your drawings don’t get the message across
If you’re trying to communicate a certain message and a drawing is the best way to do it, it’s not a good idea to have someone else draw it for you. Your drawings don’t get the message across the way you want them to, and they don’t have the same impact as you drawing it yourself. One of the biggest problems with previous patent drawings is the “headline jump.” If you have a drawing with the caption IDEK VIA BOLTON AVENGER AIRPLANE AND THE DRAWING WAS SUPPOSED TO GO ON PAGE 2, it’s difficult to get the reader to get the drawing off the page and onto the next. Whether you’re writing a query letter, your invention must stand on its own.
Cut out as much extraneous text as possible from your drawings. You can always crop out the first paragraph of the patent if you think it’s necessary, but it’s good to get the rest out of the way, especially if you want to share these drawings with others. Even if the patent is just covering a specific shape or something simple like a concave shape on a piece of paper, it’s worth removing as much of the text as you can. There are times when it’s important to write the entirety of a patent application in order to avoid blocking text with a question mark — but doing so means your drawings may not be able to show how to write such kinds of text.
Refer to your filing instructions or patent drawings for a rough idea of what characters and symbols are allowed in the application. When applying to have someone else read, scan, or otherwise read over your application make certain that you’re not using special font that isn’t specified in the filing instructions. Use standard fonts or alternative characters as closely as possible. If the patent doesn’t mention any characters or symbols you can always use shorthand, to keep from confusing someone else with characters that are common in commercial writing.
4. You don’t have the right people on your side to file a successful application
In the US, you have to have a lawyer to file a patent or trademark. So if you don’t have a lawyer to help you, you have to know a lawyer. If you don’t know a good lawyer, you have to find a good lawyer.
There are many advisors and Patent Professionals throughout the US who can help you with your patent applications. Many of these advisors charge a fee. You can look this up online.
Due to the US’ tax code, it is often more beneficial for a company to utilize a self-funded strategy. Under this strategy, the company essentially finances and implements the patent application themselves. Their patent application or trademark can then hold value forever without needing to be licensed. However, if the federal or state governments ever start taxing companies based on new inventions their inventors developed, this could provide an advantage for companies who are self-funded.
The only guarantee that you can receive a patent or trademark through self-funded means is if it appears legal according to the government. You can’t depend on your inventors or co-inventors to grant you a patent or trademark.
The US patent office has a random examination system that sends people to parties to test their inventions against other patents with similar subject matter at random. When people attend these parties, it’s not unusual for them to have their applications evaluated against patents from other inventors right in the audience. The purpose of these events is to catch potential infringers so potential laws can be passed to protect companies from patent abuse.
Patents, trademarks, and copyrights aren’t just for inventors and companies, though. Anyone can apply to have a patent, trademark, or copyright on an idea and have it approved. However, it is also necessary to prove that the idea is original.
You can only obtain a copyright or patent on an idea if you have written permission to use it. In other words, if someone else already owns it, you can’t copyright it on your own inventions.
5. You didn’t do enough research about your idea before you applied for a patent
It’s important to do your research before you apply for a patent to make sure that your idea is unique and that you are the first person to think of it. Doing your research will also help you make sure that your idea is realistic and that there aren’t any obvious issues with it that will prevent you from getting a patent.
First things first, you need to decide what type of patent application you want to file. Nontrivial patents are granted on inventions that are too basic and obvious. Patents on these inventions are meant for institutional review board review. Review boards are supposed to determine whether the invention is new and original. The assignment of a patent involves a contract between the inventor and the patent office. Nontrivial patents are currently assigned through processes that are open for public comment. Public input is especially important for minor and prior art patents. If you want to learn how to apply for a patent, this tutorial from Patently Apple covers it pretty well. Here is a summary of the steps:
Note that the various steps would need to be completed before applying for the patent.
On your online patent application, you will be asked to fill in all of the information that is required. Everything from the title and abstract to claims and filing date must be given.
The claim in the patent application describes the invention and is one of the most important parts of the patent application. You will also need to write a non-mereral specification (also called an appended claims). The non-mereral specification is the list of claims given in the patent application, which you describe later in this tutorial.
Allow several hours for uploading your application and copying all the necessary information from the application; more than a week would also be acceptable.
IMPORTANT: Patent applications get reviewed by various people (reviewers). Be sure to include your contact information in your patent application.