How to patent an idea: The procedure and costs explained

A patent is a pro­tec­tive right that protects your in­tel­lec­tu­al property. Unlike copyright, it does not protect artistic works, rather it protects in­ven­tions and ideas. When you apply for a patent, you prevent third parties from using your idea and from re­pro­duc­ing or ex­ploit­ing your invention. You can grant licenses for a fee, meaning others can adapt your idea, but you still get paid for it.

Un­for­tu­nate­ly, filing a patent ap­pli­ca­tion is often a lengthy process and a major financial challenge for many SMEs. Fur­ther­more, patents are only valid in the country in which they are filed. However, the Patent Co­op­er­a­tion Treaty (PCT), orig­i­nal­ly started in 1970 and modified in 2001, aimed to simplify the process of filing patents in several countries. This guide will take you through the essential steps and warn you of the hurdles of a patent ap­pli­ca­tion.

If you are seeking to make a patent ap­pli­ca­tion, your invention must meet certain re­quire­ments. First of all, it needs to be a technical invention – not just something you have dis­cov­ered. The US Patent and Trademark Office (USPTO) requires matters which apply for patenting to be “new and useful”, and to fit into the category of a process, machine, man­u­fac­ture or com­po­si­tion of matter. Here are some more of the patenting reg­u­la­tions, as set out by the USPTO:

• Above, a re­quire­ment was for a new patent to be applied to something that was useful However, it is important to note that re­quire­ment only applies to utility patents.
• The above­men­tioned re­quire­ment that the invention must be "novel," or new, however, applies to all.
• Another criterion is the somewhat cryptic re­quire­ment for the invention not to be “obvious”. This means that its function can't expand on something which has already been patented. This is one of the trickiest criteria to justify, both for you and the USPTO.
• Your invention cannot be public knowledge. This is all about company secrets to the max. It also makes ad­ver­tis­ing and market research harder, because if, say, you write an article about it for a relevant magazine, you may have issues with the USPTO because the concept exists in the public realm of knowledge. This is called dis­clos­ing the patent, so your proposal cannot be “disclosed”.

Case study: Edith Weyde and Andre Rott, of Germany and Great Britain re­spec­tive­ly, both developed and patented a modern process to produce pho­to­copies using silver salt diffusion for the first time in 1941. Was this legally ac­cept­able? As mentioned at the beginning, a patent is only valid in the area where you apply for it. This practice is based on the principle of ter­ri­to­ri­al­i­ty. If your invention is patented in the USA, someone with a similar in­no­va­tion in Iceland, for example, could still make money with it. This is not unusual, because companies are con­stant­ly re­search­ing in the technical field and investing large sums in de­vel­op­ment. Tech­nol­o­gy and the research sur­round­ing it changes daily - and so similar ideas can emerge in­de­pen­dent­ly of each other at the same time.

Instead of investing in their own research, some companies copy existing in­ven­tions that aren’t patented in the company’s country. Sometimes these companies even patent this product and exclude the actual inventors from that national market. If the necessary financial resources are available, it can therefore be worth­while applying for cross-border patents in order to prevent product piracy.

If you would like to register your patent in different countries sep­a­rate­ly, be sure to inform yourself about the reg­is­tra­tion re­quire­ments of the re­spec­tive countries. As a rule, you will always need a trans­la­tion of all your documents into the official language of the re­spec­tive country, although this may not be the case for English. Each time it will cost you for the ap­pli­ca­tion, eval­u­a­tion and admission of the patent, and the fees vary in each country. The annual fees must be paid in the local currency. Otherwise, there is a risk that the patent will expire.

The Global Patent Pros­e­cu­tion Highway (GPPH) is a mul­ti­lat­er­al project designed to improve the exchange of in­for­ma­tion between patent offices. If you apply for a patent in one country, you can expect the same re­quire­ments from the others, if they are part of GPPH. If the invention has already been examined in one of the countries involved and the patent has been permitted, you can file your patent ap­pli­ca­tion in any member state using the available in­for­ma­tion of the first ap­pli­ca­tion. Whether or not this patent is then granted in the member country is another matter, but at least some ad­min­is­tra­tive effort can be saved!

The project aims to make it easier for inventors to protect their in­tel­lec­tu­al property and to promote in­no­va­tion by making ap­pli­ca­tion pro­ce­dures simpler and more efficient. The GPPH ap­pli­ca­tion is free of charge.

The European Patent Office has its head­quar­ters in Munich, Germany. Its official filing languages are English, German and French. If you apply for a patent at the European Patent Office, you can select the countries where you want to apply – this will be your first step. By paying the patent fee in the re­spec­tive countries, you confirm where your ap­pli­ca­tion should be made to. If the re­spec­tive national patent law allows it, the EPO allows your ap­pli­ca­tion to be made in a single language - either via the Patent Office in one of the con­tract­ing states, in one of the official branches of the European Patent Office or via an online form.

A European patent does not au­to­mat­i­cal­ly cover all EU states. Each patent eval­u­a­tion service will grant or reject a patent. This applies to in­di­vid­ual EU member states, i.e. those which you selected when filing the ap­pli­ca­tion. The patent is equiv­a­lent to a locally filed patent once it has been published in the European Patent Spec­i­fi­ca­tion.

The World In­tel­lec­tu­al Property Or­ga­ni­za­tion (aka WIPO) makes it possible to make an in­ter­na­tion­al ap­pli­ca­tion for 152 member states at once. The Patent Co­op­er­a­tion Treaty works in two phases: in­ter­na­tion­al and national. In the in­ter­na­tion­al phase, the in­ter­na­tion­al authority examines the invention for the criteria listed above. You have to kick off the national phase yourself. In this case, you’ll need a trans­la­tion of your ap­pli­ca­tion into the official language of the countries you’re filing in. Reg­u­la­tions and fees also depend on the country of ap­pli­ca­tion. National patent ap­pli­ca­tions must be received within 30 months.

The cost of a patent varies hugely. First, you need to consider how many patents you’re filing for. Each one will cost something, and each one will require main­te­nance whilst you’re making the ap­pli­ca­tion. A ballpark figure for doing the ap­pli­ca­tion yourself is $900. This figure is much less than the cost of getting a lawyer to help you with the ap­pli­ca­tion, which can cost upwards of $10,000, over ten times the DIY option. However, the success rate with pro­fes­sion­al help is much higher, and so you can also ask yourself the question of if it is worth risking a smaller (but not in­signif­i­cant) amount of money, or if you want to spend more but have a bit more certainty.

There may be potential schol­ar­ships for you and your patent ap­pli­ca­tion, but this depends not only on where you live and where you’re filing for your patent, but also factors such as patent category. It is worth investing time into re­search­ing these pos­si­bil­i­ties, because they may help you down the line.

Not all patents are the same, and for good reason. Lots of important factors determine how much you have to pay for your patent ap­pli­ca­tion. Take a look at the following:

• The type of patent. This is the part that affects costs the most, so a simple invention such as a coat hanger will cost around $5,000. More advanced tech­no­log­i­cal in­ven­tions such as brain imaging machines cost more, upwards of $16,000.
• Who is applying for the patent? An in­di­vid­ual will generally pay less than a business, and busi­ness­es will pay varying amounts too. It makes sense that small busi­ness­es have to pay more than an in­di­vid­ual, but less than a big business.
• The level of tech­nol­o­gy. Similar in de­ter­min­ing the type of patent, the level of tech­nol­o­gy will also play a role in the price. An invention which is high tech­no­log­i­cal, requiring lots of research will be more expensive than something which is simpler, and didn’t need as much research put in.
• How many ap­pli­ca­tions and where? As mentioned before, making several ap­pli­ca­tions in several countries incurs more costs, not only because of the patent fees, but also because of admin fees such as trans­lat­ing your documents.

A patent ap­pli­ca­tion is a time-consuming and often costly procedure. Making mistakes in the ap­pli­ca­tion forms or missing a deadline puts you at risk of your ap­pli­ca­tion being rejected. The following checklist is helpful as a summary of the most important points for filing a patent.

First and foremost, you have to make sure that your invention meets the patent criteria. Depending on which country you are filing in, this might be a little different, not only because different products exist in different markets! Make sure your patent is novel, useful, non-obvious, and kept con­fi­den­tial, aka not in public knowledge. This can be hard if you’re excited about your invention or want to market it right away, but it is a crucial step to remember!

The next step is deciding whether you want to apply for the patent all on your own, or getting help from an attorney. It is not a re­quire­ment to get help from an attorney, unless you are filing for a patent in the US from overseas. Now it is a re­quire­ment to get help from a reg­is­tered attorney. However, because patent ap­pli­ca­tions can get com­pli­cat­ed quickly, and because you’ll sometimes have to use par­tic­u­lar wording in order for your ap­pli­ca­tion to be approved, it is a good idea for anyone filing a patent to get expert help.

Another thing you’ll need to do before you can make your patent ap­pli­ca­tion is to make sure your financial base is covered. How are you financing your invention? How are you financing the patent? These are really important elements of your product planning, because people may be curious to know about this in the future, let alone attorneys and those part of the path to your patent ap­pli­ca­tion. Ways of financing your patent include schol­ar­ships, grants, investors, and savings. Be clear on how you want to do this, as attorneys in par­tic­u­lar may need to know this for your ap­pli­ca­tion.

Having done a good amount of research before your patent ap­pli­ca­tion, it is now time to file your patent ap­pli­ca­tion! If you choose to file your US ap­pli­ca­tion online, you will use the TEAS system.

The TEAS system has a fee of $225 (as of August 2019), with really strict re­quire­ments. A full list can be found on the Trademark Manual of Examining Procedure’s website but this really is the nitty-gritty, and it can really help to get an attorney or expert in this field to assist you.

Once you have submitted your form online via TEAS, you can track your ap­pli­ca­tion to see if further documents are needed. You can do this via TSDR (Trademark Status and Document Retrieval), which is the service you can use to get in­for­ma­tion about the status of your ap­pli­ca­tion. Fur­ther­more, you can download or view documents for your pending ap­pli­ca­tion. You’ll need your trademark or reg­is­tra­tion number to access this in­for­ma­tion.

The TSDR make clear that ap­pli­ca­tions should be monitored by those filing them to check the status of them in case they need to take action. The USPTO will prompt ap­pli­cants to take action via the status update of the patent. The sug­ges­tion is that when an ap­pli­ca­tion is pending, an applicant should make sure to check on the ap­pli­ca­tion every 3 months. This is so you do not miss important in­for­ma­tion of vital updates to your ap­pli­ca­tion. Failure to act could jeop­ar­dise your ap­pli­ca­tion.

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