From Idea to Patent

Let’s imagine you have a great idea and nothing similar exists on the market. You’re proud of your invention, you work on it, improve it and share it with the world. But what can you do to protect your idea from people who may steal it or call it their own? Well, you can secure your rights by filing for a patent.

A lot of people get a little confused between patents, copyrights and trademarks. Although there may be some similarities, they each serve very different purposes.

Francesca and I have learnt a lot about patents thanks to our work on Infiniti Bra! So let’s take a closer look at the whole process.

What is a patent?

The first important thing to know is that the patent itself is not your invention! It is in fact a property right, which means that the invention belongs to you. Patents are granted by the United States Patent and Trademark Office, (USPTO), and once you file a patent, your invention is protected for 20 years. What that means is that owning a patent for your invention will ‘exclude others from making, using, offering for sale, or selling’ your invention in the United States or ‘importing’ your invention into the United States[1]. It is a right to exclude others’ unauthorized actions over your invention.

What can be patented?

Under U.S. patent law, any person who ‘invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent’[2]. In general, to qualify for a patent, your invention must satisfy the following four requirements:

1.The subject matter must be patentable (35 USC 101). For example, you cannot patent a law of nature, an abstract idea or an invention whose purpose is criminal.

2. Your invention must be novel (35 USC 102). This is a fancy way of saying that your invention must be ‘new’. If your idea already exists, then it's not new and the USPTO wont grant you a patent.

3. Your invention must be useful (35 USC 101). This means that your idea must be operable and work.

4. The invention must not be obvious (35 USC 103). Even if your invention differs from another patented invention, you may be denied a patent if the difference of your invention is not obvious. If it was an obvious variant of an existing product, then your invention would have made it into the public domain without you disclosing your invention via the patent process, and your invention wouldn’t need a patent.

How to patent an invention?

Be aware! If you chose to start the patent process, it’s going to take at least one year and will cost you.

There are four main steps to the patent process:

1.    Research and search

The number one thing to do is to conduct an in-depth search to find out if your idea and invention already exists. Search everywhere, especially in the Google Patent Database and the USPTO Patent Database. However, please note that this search won’t be perfect and you will likely miss some relevant patents. The results of this novelty search will only provide you with a rough idea as to whether your invention is patentable; it is not a guarantee either way.

Francesca and I started conducting this search ourselves! It was a very difficult, time-consuming and scary task so we hired a lawyer to help with the entire process. I really recommend doing the search yourself first, for two reasons: one, it is always rewarding doing your own research and you can see what’s going on in the patent world; two, if you do find a patent that is very similar to your invention, then you don’t need to file a patent and you just saved yourself a lot of money.

2.    Decide on the proper application type

Decide what type of patent application is right for you, as there are three different types: utility, design, and plant. There are two different categories of utility patent applications: provisional and non-provisional. We decided on the utility patent for our bra. The non-provisional utility patent application is a long, technical document that describes a machine or product, and teaches the public how to use it.

The non-provisional utility document is very expensive and more so if you hire an attorney to file it for you. Because of this huge expense we decided to start a provisional utility patent application instead which, when filed, lasts one year. We chose this route because it gave us a year to really be sure about our product and bring it to life before investing more money to protect something we didn’t know for sure was commercially viable. The provisional patent is a cheaper, less formal application. It proves that the inventor was the one who created the invention at a specific date. It also gives the inventor a first filing date for figuring out how to make their invention work. Once your invention is on file, you are patent pending.

3. File with the USPTO

The filing of your application can be done online or by mail. Broadly speaking, a utility patent application requires many elements, including a specification that describes what it is, how to make and use your invention (35 USC 112) and highlights the advantages your invention offers. You will also need to submit claims with the non-provisional application; this will determine what aspects of your invention you want to be protected.

4. Wait it out

If you file a non-provisional utility application, you need to be prepared to wait a long time while the USPTO examines your application and comes back to you with an objection or a grant of patent. In the event of an objection (which apparently is likely), you can file a request for reconsideration or appeal their decision. If like us, you file a provisional utility application first, keep an eye on the time! Remember, you only have one year to file your non-provisional utility application. And it can take a while to get all the relevant documentation together and write the final patent description.

Can you do it yourself?

Yes, it is possible to file a patent application without the help of a registered attorney or agent, this is called ‘Filing Pro Se’ and with this option you will get a little help from the USPTO. Being part of the legal community myself, I know it’s often better to entrust professionals with this kind of delicate legal stuff. In our case, there were two main difficult areas: the patent search and the written description of our bra on the final application. We are really glad we chose to get help from a lawyer as we had never gone through the process before and we didn’t want to mess it up. We decided to spend that precious time focusing on building Infiniti Touch™ and perfecting our business plan instead!

I hope this information was useful and gave you an idea on how to protect your next invention. We recently filed our non-provisional application and are now waiting for the USPTO’s review!

Want to read more, here is our Eureka Moment blog!

Talk to you soon!

Elodie