A step-by-step overview of a patent application and maintenance process.
Step 1: Get ready to apply
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.
Step 2: File your application
If you have employed a registered attorney or agent, they can file on your behalf.
If planning on filing your application yourself, see the Patent Application Guides for information on the required parts, form, and content of a patent application (MPEP § 600) for filing the type of patent application you have determined is right for you.
If you are an independent inventor, contact our Pro Se Assistance Program. It offers free assistance if you choose to not hire a patent attorney or patent agent. The Pro Se Assistance home page provides a number of resources for independent inventors throughout the patent process.
A. Create and validate your USPTO.gov account
The USPTO strongly recommends applicants register for a USPTO.gov account in order to make the most of our systems. Registration allows users of the USPTO’s Electronic Filing Systems Patent Center and EFS-Web the ability to electronically save materials being created for submission and to file follow-on materials online. While it is possible to file a patent application online as an unregistered user without a customer number, you will not benefit from the USPTO tools available online to view and track your submission if you do so. In order to track the progress of your application and respond to USPTO correspondence online, you must become a registered user by obtaining a customer number and verified USPTO.gov account. We highly encourage you to register in order to make the most of our systems.
Your application does not have to be ready to open your verified USPTO.gov account. Start this process as early as possible so that when you are ready, you can file your application as a registered user. Find more information regarding the account creation process at the Patent Electronic Business Center (EBC).
An additional non-electronic filing fee applies to file by postal mail or hand-delivery. Find out more about filing your application this way.
B. Prepare your application
See the Patent Application Guides for the detailed legal requirements for filing the type of patent application you have determined is right for you.
Do you want to file a provisional or nonprovisional application?
A provisional application is a quick, inexpensive way for you to establish a U.S. filing date for your invention that can be claimed in a later-filed nonprovisional application. Provisional applications will not be examined and never lead to patents by themselves. After filing a provisional application, you will have 12 months from the provisional filing date to file your nonprovisional application. Please note that provisional applications cannot be filed for design inventions.
A nonprovisional application is examined by a patent examiner and may be issued as a patent if all the requirements for patentability are met. To file your nonprovisional application, you must prepare all your documentation. This includes submitting the contents in a standardized format, along with all required forms and fees. Consult this checklist for filing a nonprovisional utility patent application [PDF] for more information regarding the required forms and content.
If filing a nonprovisional application claiming the benefit of the filing date of a provisional application, your nonprovisional must properly refer to the application number of your prior-filed provisional in an Application Data Sheet (ADS) for your claimed invention to be eligible to receive the benefit of the provisional filing date. Here are tips for filling out your Application Data Sheet [PDF].
C. Submit your application
Submit your initial application with all the required parts for obtaining a filing date and include the correct fee. Here are some elements to consider:
- Checklist for filing a nonprovisional utility patent application [PDF]
- Parts, Form, and Content of Application (MPEP § 601)
- Patent application filing fees
- Accepted payment methods
- Common pitfalls on USPTO forms
- Small-entity and micro-entity status information
Once your documentation is ready, submit your application online by logging in to Patent Center through your validated USPTO.gov account. Filing online provides a better guided filing experience and avoids additional paper-filing fees. Here are some resources to help you:
- Basic tutorial on filing a new application online [PDF] — includes sample documents, what must be submitted to get a filing date, documents often included in a new application, etc.
- How to access our online filing and application status systems
- Quick start and indexing guides for basic online filing directions (EFS – Web)
- Additional help in filing for a patent application online (first-time online filers may also contact the Patents Electronic Business Center for assistance in the online filing process)
As a part of our continuous efforts to modernize and streamline our patent application systems, applicants have the ability to file patent application-related documents in DOCX format through EFS-Web and Patent Center. DOCX filing of the specification, claims, abstract and drawings are available to all EFS-Web Registered and Private PAIR users. Patent Center registered and unregistered users may file the specification, claims, abstract and drawings in DOCX format. Specification, claims and abstracts not filed in DOCX format will incur a non-DOCX surcharge of up to $400 for this filing type, effective June 30, 2023.
- File patent application documents in DOCX
- Top three helpful tips for filing patent applications as you move to DOCX format
When you submit your documentation, be sure to include:
- Specification (description of your invention) with “brief description of drawings”
- DOCX Specification Template [DOCX] — a simplified template for new filings with the most common specification sections. In Patent Center this template will autodetect the specification, claims, abstract, and drawings sections.
- At least one claim on a separate sheet
- Claim drafting assistance [PDF] — a presentation on claim format and drafting strategy. (Fees mentioned are subject to change).
- An abstract (less than about 150 words) on a separate sheet
- Drawings (if needed)
- Fees (filing, search, and examination), plus any other required fees
- Oath or declaration signed by all inventors (if more than one inventor, submit more than one form)
- If applicable, Micro-entity form signed by all inventors, if they meet the requirements for reduced fees (if more than one inventor, submit more than one form)
- Application data sheet (ADS) signed by all inventors (be sure to claim provisional applications under the domestic benefit section)
- Understanding the Application Data Sheet (ADS) [PDF] — a presentation on information and tips for filing an ADS
- See Checklist for filing a nonprovisional utility patent application [PDF] for additional information.
Before you sign your application, carefully review the written specification and claims. You will not be able to add any new information to your application after it is filed.
Once your application has been received by the USPTO, it will then be reviewed for formalities and completeness. If your application contains informalities or is incomplete, you will receive a notice outlining the requirements to complete your application (e.g. Notice of Missing Parts or Notice of Incomplete Application).
A Notice of Missing Parts will be sent to you in the event that an essential filing requirement is found to be missing when your application is filed. Some examples of essential filing requirements are: appropriate filing fees, improper entity status, and improper priority claims.
A Notice of Incomplete Application is sent to you when nonprovisional application papers are deemed incomplete. Essential filing papers are the specification, drawings, and claims. The filing date of the application will be the date the corrections are made. More information on application completeness can be found in the Manual of Patent Examining Procedure (MPEP) § 506. You will be given a time period to complete the application filing (a surcharge may be required). Timely response to correspondence from us and keeping your contact information up to date is important so you won’t miss important correspondence. If the omission is not corrected within the specified time period, the application will be abandoned.
If your application becomes abandoned at this stage and you still want to pursue this patent, you may be able to revive your application or request withdrawal of the abandonment by filing a petition (fees, forms and requirements vary). The type of petition needed depends on the circumstances surrounding the abandonment of your application.
If you filed a non-provisional application and no outstanding matters remain on perfecting your application, then your application will be routed to a patent examiner who will determine patentability.
E. How long will this take?
Estimate how long until you receive your first letter from us in response to your application. See the Patents Data Visualization Center for an average first office action time estimate and total pendency. This will be available once the application has been classified.
Consider expedited examination options. The USPTO Patent Application Initiatives Timeline displays various programs to help you during each phase of the patent process. View a detailed list of programs available prior to examination.
Step 3: Application prosecution
If you choose legal representation, remember that once an application is filed by a patent attorney or agent, the USPTO will only communicate with the attorney or agent. The USPTO does not simultaneously correspond with you and a legal representative (37 CFR 1.33).
The work of examining patent applications is divided among various technology centers (TCs), each overseeing assigned fields of technology. Each TC is headed by group directors and staffed by examiners and support staff. The examiners are assigned to units specializing in the broad and specific subject areas that best cover your invention and review applications and determine whether patents can be granted.
Once your application has been assigned for examination, your examiner will review the contents of your application to determine if it meets all legal requirements for allowance. The examination consists of a study for compliance with legal requirements (e.g. utility, double patenting, non-statutory double patenting) and a search through U.S. patents, publications of patent applications, foreign patent documents, and available literature. This is to see if the claimed invention is new, useful, and non-obvious, and if the application meets patent statute requirements and rules of practice.
You are notified in writing of the examiner’s decision by an “office action.” This is normally mailed to the attorney or agent of record, or to you directly if not represented by an attorney or agent. There are a number of legal requirements that must be met, including novelty (35 U.S.C. 102), utility and eligibility (35 U.S.C 101), non-obviousness (35 U.S.C. 103), and written description (35 U.S.C. 112), etc. If the examiner determines the application does not meet all of the requirements, the reasons for the determination will be explained in this written office action.
You must request reconsideration in writing, distinctly and specifically pointing out the supposed errors in the office action, and replying to every ground of objection and rejection. The reply must appear throughout to be a bona fide attempt to advance the case to final action or allowance. The mere allegation that the examiner has erred is not a proper reason for reconsideration. You are able to amend your disclosure and/or argue against the examiner's decision at no cost (as long as the response is received within the time period noted in the action). In amending an application in reply to a rejection, you must clearly point out why you think the amended claims are patentable in view of the state of the art disclosed by the prior references cited or the rejections and objections made. You must also show how the claims as amended avoid such references, or rejections and objections.
Be careful to not delay your reply to office communication, as this may result in additional fees if filed after the reply period expires or abandonment of your application if you fail to respond to the examiner's office action within the required time. Fees paid are rarely refundable. The reply period is noted in the action. The shortened statutory reply period is the time limit to reply without having to pay extension fees.
- Learn more about responding to office actions.
- Patent examination fees
- Patent fees for "Extension of Time"
Consider an “interview” with your examiner — We encourage our examiners to be proactive in engaging applicants in resolving issues and shortening prosecution. When you receive a non-final (or any other) office action, you may contact your examiner to schedule a meeting or phone call (what the USPTO refers to as an “interview”). The examiner’s contact information and work schedule can be found at the end of every office action.
After you respond to the first office action, your examiner will review your response, and if the examiner still does not think your application meets the legal requirements for a patent, the examiner will explain the reason(s) in a written second office action. This second action may be indicated as “final”. You will still be able to amend or argue against the examiner's decision within time periods noted in the final action, but with more restrictions than when responding to a first office action.
After an office action is indicated as final, you still have multiple options, the most common of which are as follows:
- Filing a reply after final under 37 CFR 1.116 or under the After Final Consideration Pilot 2.0 that addresses all rejections and objections
- Filing a Request for Continued Examination (RCE) in order to continue prosecution of your application
- Filing a Notice of Appeal with the Patent Trial and Appeal Board (PTAB)
A detailed matrix of programs available to assist you during examination and after final rejection (close of prosecution) is available. Each program is designed to advance the progress of a patent application and to provide applicant assistance.
Note that unless the examiner reopens prosecution, applicant successfully removes all grounds of rejection, otherwise places the application in condition for allowance, or applicant otherwise stops the running of the statutory period for response, the application will go abandoned as a matter of law after six months from the mailing of the final rejection. See MPEP § 711.
Step 4: Receive your patent
If the examiner determines that your application meets the patent requirements, you or your legal representative will receive a Notice of Allowance. This means you are entitled to a patent. This will list the issue fee and may also include the publication fee. You can find frequently asked questions about the notice and the issue fee here, along with the patent fee table.
The issue fee (and, if necessary, the publication fee) shown on the Notice of Allowance must be paid for your patent to be issued. This payment must be received by the USPTO within 3 months from the date of mailing of the Notice of Allowance to avoid abandonment of the application. Unlike many other deadlines during examination, this three-month period is not extendable.
The issue fee (and, if necessary, the publication fee) shown on the Notice of Allowance must be paid for your patent to be issued. This payment must be received by the USPTO within three months from the date of mailing of the Notice of Allowance to avoid abandonment of the application. Unlike many other deadlines during examination, this three-month period is not extendable.
The patent grant confers “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States." The term of a utility or plant patent generally lasts 20 years from the date the application was filed in the United States, subject to the payment of maintenance fees and any patent term extension, adjustment, or disclaimer. If the application claims the benefit of an earlier filed U.S. application or applications (excluding provisional applications), the patent term ends 20 years from the date the earliest such application was filed.
If you have additional inventions disclosed in your application or you have improvements to your current invention that were not previously disclosed, you may also choose to file additional applications (Divisional, Continuation, or Continuation-In-Part) to pursue patent protection for this subject matter. Please be aware that the additional application must be filed prior to, or concurrent with, the payment of the issue fee of the parent application, in order to not jeopardize the additional application’s codependency.
The USPTO is issuing electronic patent grants (eGrants) for all patents with an issue date on or after April 18, 2023. eGrants are available through Patent Center, the USPTO's electronic patent application filing and management system, which includes patent document viewing.
Step 5: Maintain legal protection of your patent
Pay maintenance fees and check the status
For utility patents, maintenance fees are due 3.5, 7.5, and 11.5 years after the date of the patent grant, and each one of those three maintenance fees can be paid without an additional surcharge during the six months preceding those due dates. Maintenance fees can also be paid with a surcharge during the six months following those due dates. Of course, the six months following the 3.5, 7.5, and 11.5 year due dates end on the 4th, 8th, and 12th anniversary dates of the patent grant and those three anniversary dates are the last days to pay the three respective maintenance fees in order to prevent patent expiration. It is recommended to set up reminders to pay these fees and to check the current fee schedule before submitting any required fees. Failure to pay the maintenance fees leads to expiration of the patent and loss of the accompanying rights. See the Maintain Your Patent page for more information.
The USPTO does not mail notices that maintenance fees are due. If, however, a maintenance fee is not paid on time, the USPTO may send a reminder of the ability to pay with a surcharge during the grace period. If the fee is not paid on time, and the fee and surcharge are not paid during the grace period, the patent expires on the date the grace period ends.