The Process of Obtaining a Patent

What does it take to get patent protection? Find out here.

Donald J Ersler, S. C. Profile Image

Donald J Ersler, S. C.

Elm Grove, WI

The process of obtaining a patent includes a patent search, preparation of a patent application, patent examination and issuance.

The patent search includes a search for any type of published material that discloses a device or invention similar to your invention. The published material is also known as prior art. Potential prior art includes US patents or published patent applications; foreign patents or published patent applications; product catalogs; magazine articles; published research papers; seminar materials; or existing products. It is advised that the inventor do their own preliminary search, before hiring a third party to do a patent search. The best place to do a search is on the Internet. A preliminary search can be done by going to a general search engine, such as Google and entering words that describe the invention. This may also be done at Google patents to find US patents and published patent applications. US patents or published patent applications can also be found at the Patent Office search engine, Foreign patents or published patent applications can be found at the World Intellectual Property Organization search engine, Doing a patent search at and both require learning how to use search engine identifiers. As a last note, the age of the patent, published patent application or any other published material is not relevant. Once a document is published, it will always be prior art usable in anticipating a later filed patent application. It is highly recommended that a patent attorney review any prior art relative to the invention to determine, if it is worthwhile to file a patent application. A patent application must be filed, before the one year anniversary of a public disclosure of the invention or a first sale of the invention. Otherwise, the inventor will be barred from filing a patent application for the invention.

A patent application is prepared from information provided by the inventor. It is suggested that the inventor provide a written description of the invention with drawings and/or photographs. A written description should include the structure of the invention; the functionality of the invention; and why the invention is an improvement over the prior art or different than the prior art. The information obtained from the inventor is used to prepare the patent application. The patent application includes a discussion of the prior art, a summary of the invention, a brief description of the drawings, a detailed description of the preferred embodiments, claims and an abstract of the disclosure. The discussion of the prior art includes a listing of relevant patent documents that disclose devices, which are similar to inventor's invention. The summary of the invention includes a short description of the invention. The detailed description provides an in-depth description of the structure and functionality of the invention. The claims define the scope of the invention. The claims are the most important part of the patent application. All the limitations in the claims must be found in a knock-off product. If all the limitations are not found in the knock-off product, the inventor cannot sue for infringement. The abstract is a description of the invention in less than 150 words.

Patent examination occurs about 11/2 – 2 years on average, after the patent application has been filed with the Patent Office. Accelerated examination may be obtained by paying an added fee to the Patent Office. The primary location of the Patent Office is in Alexandria, Virginia. However, the Patent Office will soon be opening satellite offices in Dallas, Texas; Detroit, Michigan; Denver, Colorado; and Silicon Valley, California. The new locations will make it easier for the Patent Office to recruit and retain patent examiners.

There are about 6,000 patent examiners in the patent office. About 250,000 patent applications are filed every year. The patent examiner will start the examination process by reading the patent application and especially the claims. The patent examiner will then do a search for prior art. The patent examiner will start by looking for US patents and published patent applications. If the patent examiner is not successful in finding relevant US prior art in the US patent database, the examiner will try a limited collection of foreign patents and published patent applications in the US patent database. The patent examiner may also do a search for non-patent literature, such as articles and research papers. Next, the patent examiner compares the prior art found during the search to the claims of the patent application. If the examiner feels that any of the claims describe the prior art, the examiner will reject the claims. A patent examiner's conclusions concerning the claims are presented in an office action. The examiner will allow, object to or reject each claim in the patent application. The patent attorney is given the opportunity to amend the claims and/or argue that the claims are allowable as written. The patent attorney presents the amended claims and/or arguments in a response to the office action. There may be more than one cycle of office actions and responses, until at least one claim in the patent application is allowed. If the patent attorney or inventor is unhappy with the examiner's opinion, an appeal may be filed with the board of patent appeals.

The last step in the patent process is issuance. All claims in the patent application must be allowed or canceled. When this occurs a notice of allowance is issued. The issue fee is paid and the patent application will, become an issued patent in about one month.

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