Step 1: Conducting a Patentability Search
Patentability searching involves searching the patent database to determine whether someone else has already come up with the same idea. If another patent exists for your idea, you won’t be able to get a patent because your idea is not considered new. However, if no other patent exists, you may be eligible for a patent. It’s important to note that patentability searches are not foolproof.
It’s crucial to conduct the patentability search after you have a clear understanding of how your invention will work. For example, if you have an idea for space travel, simply having the idea itself isn’t enough to start the search. You need to figure out how space travel can be achieved, considering factors like rockets and life support systems. The level of detail required may vary depending on the complexity of the idea or invention. In essence, if you only have an end goal in mind, such as space travel, you’re not yet ready to begin the patentability search.
Once you have a good understanding of how your invention works, you can proceed with the patentability search. This is where prototyping comes into play. A prototype is a working model of your invention that helps test its functionality and ensures it works as intended. Building a prototype is highly beneficial as it allows you to fully comprehend how your invention works and identify any flaws or areas for improvement.
The patentability search typically takes around 2 to 3 weeks to complete, but this timeframe comes into play after you have already figured out the inner workings of your invention. If you need to build a prototype, the patentability search might be delayed until after the prototype is built and tested. It’s worth mentioning that the prototyping process can take anywhere from one month to one year for most simple products based on my experience with clients.
Step 2: Preparing a Patent Application
A patent application consists of a written description and drawings that explain how to make and use your invention. However, preparing a patent application is easier said than done. If you opt to prepare the application yourself, it typically takes about 4 to 6 weeks. Alternatively, you can hire a patent attorney to handle the task. However, selecting the right patent attorney is no small feat, as even subpar attorneys can sound highly knowledgeable.
Step 3: Waiting for the Patent Office (Backlog)
The primary reason why obtaining a patent takes a considerable amount of time is that you have to wait for the patent office to examine your application. The United States Patent and Trademark Office receives approximately half a million patent applications each year. With only around 8,000 patent examiners available, they work through this backlog on a first-come, first-served basis. Given the volume of applications, it’s understandable that it takes substantial time to review each one thoroughly. Additionally, even if you have already conducted a patent search, the Patent Office will still conduct its own search. They will draft a written office action and send it to you.
Moreover, if your invention falls under an impacted technology area, such as biotechnology or software, the process could take even longer compared to a field like basket weaving that likely has fewer pending applications.
Step 4: Examination
When the patent office finally begins examining your application, it is more likely that they will issue a rejection rather than a notice of allowance. To proceed, you must respond to convince the examiner that your patent application deserves to be allowed. You have three months to respond initially, but with the payment of an extension fee, you can take up to six months. On the other hand, the examiner has four months to respond to your submission, but this is not a strict deadline. It often takes many months for them to respond.
In summary, the examination process itself can take around eight months or longer before the examiner makes a final decision to grant your patent or you decide to abandon your application.
Step 5: Speeding up the Patent Process
There are ways to expedite the patent process at the USPTO. First, if you are over 65 years old or in poor health, you can expedite your patent application. By filing a petition to make your application special based on age or health, the patent office will prioritize your invention. It’s possible to submit this petition at any time, even if the inventor is not 65 years old when filing the application. However, it’s important to note that the patent office sometimes overlooks these petitions. If you do file a petition based on age, make sure to follow up with a call to the USPTO to ensure proper processing.
Alternatively, if you don’t meet the age or health criteria, you can still move your patent application to the front of the line through the Fast Track program. This allows you to bypass the backlog of the half-million applications awaiting examination. To qualify, you must file a fast-track request along with your patent application. If you’ve already filed your application, you can file a continuation patent application along with the fast-track request.
Based on my experience, patent applications in the Fast Track program usually receive examination within 4 to 6 months, significantly faster than the usual 16-month timeframe. Additionally, the USPTO maintains a special docket or calendar specifically for Fast Track applications, ensuring that they aren’t lost in the system. You don’t have to continually follow up to ensure your application is assigned to an examiner.
For more information about patents and intellectual property, visit Garrity Traina, an expert in the field.