A step-by-step overview of a patent application and maintenance process.
A. Determine the type of intellectual property (IP) protection you need
To protect your invention, you may need a patent, trademark, copyright, trade secret, or some combination of these. Before you begin preparing a patent application, find out if you really need a patent and not some other form of IP protection.
B. Determine if your invention is patentable
To find out if you can patent your invention, you need to know the answers to a few questions:
- Who can apply for a patent?
- What can and cannot be patented?
- How do I know if my invention is patentable?
- How long does patent protection last?
- How much does it cost to get a patent?
Find answers to other questions on our Patent FAQs page.
C. Search to see if your invention has already been publicly disclosed by another party
You cannot get a patent if your invention has already been publicly disclosed. Therefore, a search of all previous public disclosures should be conducted, including a search of foreign patents and printed publications. A public disclosure of the invention made by, or that originated from, the inventor or a joint inventor more than one year prior to filing a patent application for the invention will also preclude patenting.
We encourage novices to contact the nearest Patent and Trademark Resource Center (PTRC) for help from search experts in setting a search strategy. A registered patent attorney or agent is often a useful resource.
It is possible, though challenging, to conduct your own preliminary search. Your search may not be as complete as one made by the USPTO when examining an application. For this reason, the patent examiner may, and often does, reject claims in an application on the basis of prior patents or publications not found in your preliminary search.
These sources provide tips on how to conduct your own search:
- Basics of prior art searching – provides an overview for the need to conduct a prior art search and identify pertinent prior art, with examples of publicly available prior art databases.
- How to conduct a preliminary U.S. patent search: A step-by-step strategy – provides a web-based video tutorial (36 minutes).
- The Multi-Step Patent Search Strategy – outlines a suggested procedure for patent searches.
- Cooperative Patent Classification effort and the United States Patent Classification system – shows how patent documents are organized in the classification system, which can help you with your search.
Current patents and many filed patent applications (referred to as “pre-grant publications”) may be searched using the Patent Public Search tool. (Please note that filed applications for design patents will not have a pre-grant publication). See our Patent Search page for additional resources.
Once your search has been completed, you may find that your invention may not be identically disclosed in the prior art (e.g. your invention is novel). This does not guarantee patentability. Once assigned, an examiner will conduct their own prior art search as part of the examination process.
D. What kind of patent do you need?
Utility patent (nonprovisional)
This is by far the most common type of application submitted to the USPTO. This may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or a new and useful improvement of any of these.
- Nonprovisional (Utility) Patent Application Guide
- Biotechnical sequence listing validation and authoring tools
- Business method patent information
Design patent (nonprovisional)
This may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.
- Definition of a design patent
- Difference between design and utility patents
- How long does patent protection last for a design patent?
- Design Patent Application Guide
Plant patent (nonprovisional)
These may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
E. How much is this going to cost?
A patent application is subject to the payment of a basic filing fee, a search fee, and an examination fee, which are due when the application is filed. Excess claims fees and/or an application size fee may also be due on filing depending on the number of claims and the total number of pages in the specification and drawings.
Fees vary depending on the type of patent application that you submit.
- Check the current fee schedule before submitting your application and any required fees.
- For information on fees under the America Invents Act (AIA) and for prioritized examination, go to our AIA FAQ page and filter on "fees."
The payment of these initial fees does not guarantee you will receive a patent. These fees enable the USPTO to examine your application. Discounts are available if you meet the requirements for small entity or micro-entity status.
F. Do you need international protection?
The Patent Cooperation Treaty (PCT) is an international treaty with more than 150 contracting states. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents based on an international application filing under the PCT remains under the control of the national or regional patent offices in what is called the “national phase.”
- International Patent Legal Administration (formerly PCT Legal Administration)
- Filing a new international application under the Patent Cooperation Treaty (PCT) [PDF]
- Pursuing international IP protection
G. Determine whether you should hire a patent attorney or agent
Preparing a patent application and engaging in the USPTO proceedings to obtain the patent requires knowledge of patent law and USPTO procedures. It also requires knowledge of the scientific or technical matters involved in the particular invention.
You may prepare and file your own application with the USPTO as a “pro se” applicant. Don’t be intimidated by the Latin term “pro se.” It can be translated to "for oneself, on one's own behalf." Legally, when you, an independent inventor, decide to file your application by yourself, you become what we at the USPTO call a pro se applicant.
When you file as a pro se applicant, you conduct the proceedings yourself, but unless you are familiar with these or study them in detail, you may encounter considerable difficulty. While some people not skilled in this area may obtain a patent, there’s no assurance that the patent obtained would adequately protect the invention.
Therefore, most inventors hire registered patent attorneys or agents. They can help you navigate the remaining steps as they act on your behalf. The first step is to contact a patent attorney or agent accepting new customers in your region. The USPTO cannot aid in the selection or recommendation of an attorney or agent but provides a searchable directory of such individuals you can contact directly. Additional information on attorneys and agents is also available.
Are you an inventor or small business owner with limited resources and needing help applying for a patent? If so, you may be eligible to receive pro bono (free) attorney representation through either the Law School Clinic Program or the Patent Pro Bono Program. Additionally, the USPTO maintains several other legal assistance resources and programs for independent inventors, entrepreneurs, and small businesses.
It is possible, though challenging, to file a patent application on your own. The remaining steps will guide you through the filing process.