A new invention or discovery may qualify for patent protection under federal law. You can read more here about the protections conferred by a patent and the types of inventions or discoveries that may qualify for patent protection. The forms to apply for a patent may be found here at the US Patent and Trademark Office (USPTO) website. (Applications filed before September 16, 2012 involved a different set of forms.) You can explore the questions and answers below to find out more about the patent application process and some of the forms that may be involved.
How Do I Apply for a Patent?
The vast majority of patents are classified as utility patents, which cover new and useful processes, machines, manufactures, compositions, or improvements to previously patented subject matter. You can apply for a utility patent online through the EFS-Web system offered by the USPTO, or you can submit your application by mail or deliver it by hand. In addition to paying the appropriate fees, an applicant will need to submit a transmittal form, an application data sheet, a specification describing the invention and containing at least one claim, and an executed oath or declaration. Depending on the nature of the invention or discovery, supplemental materials may be needed, such as drawings, tables, or computer listings.
Forms may differ somewhat if an applicant is seeking a design patent or a plant patent. For example, a design patent application involves this transmittal form, while a plant patent application involves this transmittal form. A design patent covers the design elements of a manufactured product, while a plant patent covers a new plant that has been invented, discovered, or asexually reproduced.
How Much Does It Cost to Apply for a Patent?
According to the USPTO fee schedule, the basic filing fee for a utility patent application is $300, while the basic filing fee for a design patent or plant patent application is $200. The basic filing fee for a provisional patent application (see below) is $280. However, small or micro entities qualify for reduced fees. Small entities must pay a $150 fee for a utility patent application ($75 if they file through the EFS system) and a $100 fee for a design patent or plant patent application, while micro entities must pay a $75 fee for a utility patent application and a $50 fee for a design patent or plant patent application. If an applicant for a non-provisional utility patent does not use the EFS system, they must pay an additional $400 non-electronic filing fee ($200 for small or micro entities).
In addition to the basic filing fee, an applicant must pay a patent search fee and a patent examination fee. The patent search fee for a utility patent application is $660 ($330 for small entities and $165 for micro entities), while the patent examination fee is $760 ($380 for small entities and $190 for micro entities). The patent search fee for a design patent application is $160 ($80 for small entities and $40 for micro entities), while the patent examination fee is $600 ($300 for small entities and $150 for micro entities). The patent search fee for a plant patent application is $420 ($210 for small entities and $105 for micro entities), while the patent examination fee is $620 ($310 for small entities and $155 for micro entities).
Can I Protect My Rights to My Invention While I am Developing it?
Yes, you can protect your rights to your invention for a 12-month period by filing a provisional patent application. Read more here about the forms required for this application. A provisional patent does not confer patent protection, but it suspends statutory bars and creates a placeholder so that the applicant does not lose priority if they eventually pursue a patent.
What Can I Do if My Application is Denied?
If your application is denied, you can file a notice of appeal and pay the associated fee ($800 basic fee, but $400 for small entities and $200 for micro entities). You can file a brief in support of your appeal, explaining why you disagree with the decision. You also can request an oral hearing before the Patent Trial and Appeal Board, which involves submitting an additional form and fee.
Can I Expedite the Processing of a Patent Application?
Possibly. Applicants for utility patents and plant patents can file a request for prioritized processing. If prioritized status is granted, the USPTO will aim to issue a final decision within 12 months, on average. An applicant also can file a request to accelerate their application so that it is advanced out of turn for examination. This request must be submitted through the EFS system. More specifically, small entities and micro entities that are seeking a patent with uses related to COVID-19 that would require FDA approval may be able to get expedited processing. This pilot program will last until 500 of these requests have been approved.
Can I Renew a Patent?
No. Once a patent expires, the invention goes into the public domain. This means that the inventor or other patent owner no longer has any exclusive rights to the patented material.