The U.S. Patent and Trademark Office (USPTO) received more than 767,000 patent applications in 2014. Of those, only 200,000 patents were granted. This means that more than 80% of applications are rejected for one reason or another. If you're thinking about patenting an invention, there are some important things to consider before filing your application with the USPTO. For advice on how to determine whether it's worth the cost and effort to patent your invention, see this post!
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1. What is patenting?
A patent is a legal document that gives inventors the exclusive right to make, use, or sell an invention for a limited time period. If you're planning to commercialise your invention, then you should consider applying for a patent.
You may not need a patent if you're only planning to make and use an invention for your own personal use. What's more, some industries and professions have trademark laws that prevent competitors from infringing on protected trademarks.
Controversies, Not POLISH
There's a lot going on with patent applications that result in a lot of rejections. Here are some of the issues that can bog down patent applications.
Timing
The timing of when you file your application can affect the outcome of your application. If you try to patent an idea that you're already working on or publish your application too close to when you think your competitor will launch their own invention, you could find yourself fighting a legal battle before you ever get your application heard.
Length of time
In some instances, you can file a patent application for many years before your competitor launches their invention. For example, if you invent something new and you don't file a patent application for 20 years, you may not be able to enforce your patent. In fact, you may have an "inventor's patent" even if you've already filed for it. This is because other companies will be using the same or similar concepts before they file their own applications. Only after you file your application for 20 years ago will your competitor have to pay you money for using the same or similar ideas. If you're desperate for a patent, consider trying to get an application filed for as soon as possible.
Electronic filing
If you make or use an invention online, then you'll want to consider using the electronic filing of your application. According to Otera Technology Solutions, the Electronic Filing of Patent Applications (EF) could be the “eleventh most important development of all time” according to the PTO.EF for me sounds a little dangerous.
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2. How much does it cost to patent an invention?
You can patent an invention without spending a lot of money, but you do have to pay the government a filing fee. The fee to file a utility patent is $330. However, if you file online, the filing fee is reduced to $250. You may even qualify for a small-entity discount that will lower the fee to $200.I prefer filing online since it saves me a few bucks, but you have to pay the entire filing fee, regardless of how much you order.
When Is It Inadvisable to Patent a Webspam Concept?
In my opinion, it is impermissible to patent a concept that hasn't been formally proven to exist. This includes virtually everything that the United States Patent Office considers to be spam. This includes spam that involves:
Unknowingly occurring or unlikely to occur
Arbitrary or illegal methods
Pending before a court that has not issued a judgment
Attempting to game any standard algorithm for spam detection (e.g. the Panda algorithm)
Targeting specific countries for SEO spam (e.g. what if you target Japanese customers? You're infringing on Japan's intellectual property!)
Exploiting founded-off-the-wall business concepts (whether they have any merit or not)
Viral advertising of unregistered goods and services
Spyware and malware that runs on your computer unexpectedly
I have talked about these many times in previous blog posts such as:
Spam: Never Intentionally Hijacked Your Product by its Original Designer
The Most Entertaining and Actually Effective Form of Stalking You Will Ever See
How to Get Rid of Spammy Sites without Taking the Trigger Yourself
Patenting Terrible Ideas from Banks, Corporations, or Individuals does not constitute “spam”
Patenting definitions vary by jurisdiction. For example, if you filed Google’s Application for Bill of Rights v. The People of the United States and it's not granted for some reason, that doesn't mean that Google carries out its plan to slap people around the globe.
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3. How long does it take to get a patent?
The time it takes to get a patent varies by what country you’re in and whether you’re working with an agent or not. In the US, the average time it takes to get a patent is about 20 months. The number of granted patents varies by country. The United States Patent and Trademark Office reports the following statistics on granted patents in its annual report:
Country
Granted
Patents
prior to 2002
2002
Korea, Republic of
23,164,263
13,220,545
22,533,767
Japan
28,862,288
27,287,595
18,973,284
China, People’s Republic of
8,164,732
7,997,459
8,990,477
Japan
8,244,756
8,074,9
Prioritizing The Right Ideas
The first part of convincing someone of the value of your invention is having an idea that can solve or benefit the market (your market).
Elaborating on an existing invention better likely means spending more time and money. Even after it gets released into the wild, it takes up a lot of your time and energy to convince others to pay attention.
Some ideas are obviously great ideas, and they deserve to get out in the world. Other ideas, however, may take a long time to gain traction. Early on in your market research, pay close attention to how other companies are approaching the problem you’re trying to solve. You may have ideas that are virtually identical to what they’re doing, so it’s generally wise to become the next big thing ahead of everyone else, regardless of how similar you are technically. The rest of this post will cater to those ideas that are rarely seen anywhere else.
Create An Innovative Patent Application [Filing Instructions]
Providing whole documents or portions of files used to support patent applications (the “Filing Information”) is important for two reasons. It “uts the inventor (patent holder) up” while giving them incentive to participate, and it protects your confidential information.
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4. Can you get a provisional patent?
To get a provisional patent, you need to file a patent application with the US Patent Office. The application is called a Provisional Patent Application (PPA) and it’s a lot easier to get than a regular patent.Here are some of the advantages of requesting a PPA application:
Faster than a standard application process.
Faster than sending in a written application.
Can be filed online.
For most businesses, it's a lot easier to get a PPA than a patent. There are two Basic Assumptions required for a PPA application (and you cannot skip these two assumptions in order to get a PPA):
The claimed invention must be new, and
The claimed invention must be novel.
By claiming the claimed invention, you’re ahead of a lot of people who haven’t filed a patent application. For example, over 3,400 people filed patent applications in 2013. If you can claim your invention, you’ll be ahead of them in patent infringement claims.
Because claims are essential to getting a patent, you need to include a good deal of information in your claim. To learn more about claims and how they impact your application, read Claiming Copyrights and Using Directives.
What you should include in your claim.
It’s good to include a little in your claim so that the USPTO understands the invention. Additionally, many people include too much information in their claims. Because you can include a lot in your claim, it’s important that your claim contains information that’s new, not merely descriptive.
So your claim should include:
A description of the claimed invention.
A claim referencing the previous applicant's claim.
A claim that describes or does things the prior applicant hasn’t claimed.
A claim that describes or does things the prior applicant won’t claim.
A claim describing facts the prior application is not claiming or providing an alternate explanation for the facts the prior application is not claiming.
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5. Should you patent your invention?
This is a question we get asked a lot by inventors and entrepreneurs. If you’re planning on selling your invention, you need to protect it. You don’t want anyone to steal your idea and start selling it. So, yes, if you plan to sell your invention, you should probably patent it.
I know what you might be thinking; “But Rand, aren’t those patents just kind of stupid?” You bet they are. A lot of these patents are weak and easily defeated. For example, I would argue that #853,406 translates to “use words”. While I think that #853,406 is a strong patent with meaningful utility, it has no defined use or purpose. It also doesn't mention the object you are trying to protect by using it.
The lack of specification means that it's hard to determine over what period of time your invention can be considered useful. We had a patent on an invention (invented by one of our engineers) that was granted in 2003. It was granted in 2003 because the invention was created in 1993. If someone invents something that was invented in 1993, it can't be considered useful for anything more than three months. Based on current usage, however, the invention that was first dreamed up in 1993 was more useful in 2003 than it was in 1993. Thus, the inventor only had to invent the invention for 16 months to be considered useful. This is seven months less than the 37 months needed to show use or utility.
The ambiguous language in patents has led to some very interesting cases. For instance, 8,600,544 are missing from the public record. This means that the inventor(s) didn’t use certain language in their patent application. Thus, it has never been received into evidence and the inventor can keep it secret. It’s kind of like keeping a unicorn.
I’ll use an example of a unicorn patent. Do you know how many delimiters you need to invent a text string? Even with a unicorn, it’s pretty difficult.