We are often asked the question, how do I patent an idea? Or, how do I get a patent? If you are an individual with a bright idea or a startup business developing a product, this article will explain how to patent your idea.
Follow these steps to patent an idea:
- Do not disclose your idea publicly, until it has been evaluated
- Undertake a free patent search
- Decide what your inventive concept is
- Decide what your long term goal is
- Write your patent application
- File your patent application to obtain patent pending status
- How to patent worldwide
Let’s dig into each of these steps:
Do Not Disclose Your Idea Publicly, Until It Has Been Evaluated
Many inventors, when they have developed an idea, talk about it to get feedback. This is entirely natural. However, many will then go on to develop a prototype, discuss it in online forums or on social media, and/or make their own website to start to promote the idea. These are critical mistakes.
Many patent laws around the world require absolute uniqueness. In other words, if the patent office examiner, when he or she reviews your idea, can find that you have discussed it openly, your patent will not be granted. You will not be able to protect your idea.
You must, to begin with, keep your idea or invention secret.
You can use a Confidentiality Agreement. The person that you want to talk to should sign the Confidentiality Agreement. Once signed, if the person that you discuss your invention with then uses it without your authorisation, you then have a chance to sue them for breach of contract.
It is always preferable, however, to file your patent application first. If you can also use a Confidentiality Agreement, then this gives you two options to go after someone who uses your idea without your consent.
You must, to begin with, keep your idea or invention secret.
If the person that you want to discuss your idea with is legally qualified, such as a patent attorney, then there is an implied confidence. In this case, no confidentiality agreement is required.
If the patent attorney is also chartered and belongs to a regulatory body (all of the attorneys in Albright IP are Chartered and are regulated by the Government body IPReg), then they will be bound by codes of conduct. Always ask, this will give you confidence and security.
- Do not talk about or discuss your idea publicly
- Use a Confidentiality Agreement before you discuss your idea
- You can discuss your idea with a patent attorney without needing a confidentiality agreement
- Check that the patent attorney is Chartered and regulated by IPReg
- File your patent application first
Undertake A Free Patent Search
Before you spend any money, do some homework. Try and find out if you can patent your idea, or whether someone else has already thought of the invention.
Use the free patent database, Espacenet.
Try the Advanced Search page, the second field (Title and Abstract) from the top.
I have written a basic walkthrough article (Free Patent Searching: Part 1), and a more advanced walkthrough article (Free Patent Searching: Part 2). These articles teach you the basics of using Espacenet.
Google also provides a patent search option: Google Patent Search. Be aware that Google does collect your search data (see the section above about secrecy!).
There is also Free Patents Online. This gives a nice Boolean search option.
- Use the freely available patent search options to try and track down your idea, before spending money
- Read the Part 1 and Part 2 tutorials for understanding the basics of Espacenet
Decide What Your Inventive Concept Is
Deciding what is the core concept of your idea is absolutely critical.
You are the inventor or designer, and you may have been working on your idea for months or even years. For a patent to be valuable, you must step back from the detail of your idea. You must be able to crystalise the inventive nugget of the idea, without all the bells and whistles.
When you sell your idea, it is the patent (the legal right to the invention) that you will sell.
If a competitor can easily work around the patent, then they will simply take your market without your permission. The same is true for a buyer of your future company when conducting their due diligence (in other words, the lawyers will take your patent apart to see if it is worth the money that you are asking for it). Why should they pay you anything, if they can make a small tweak and work around the patent?
When you sell your idea, it is the patent that you will sell
If you can decide what the ‘core concept’ is, as well as how your specific solution solves the problem, then this will give your patent great potential value.
Yes, you can potentially patent an idea. But, you need to give enough technical information so that a reader can understand at least one way of making the invention work.
- Decide what your core concept is
- What is the nugget of your invention?
- Strip away all the bells and whistles
- What is the underlying problem that your idea solves?
Decide What Your Long Term Goal Is
Your long term goal is usually one of two things:
- You want to licence or sell your patent rights to a third party, and walk away, or
- You want to build your own business around the product, system or process that your patent covers.
The best question to ask yourself is: where do I want to be in 5 years’ or 10 years’ time?
If you do not want to make your invention yourself, then you will want to sell the patent rights for a lump sum as soon as possible, and walk away.
The alternative to a complete sale is to licence the patent rights. A licence means that you can retain the ownership of the invention, but someone else is authorised to make and sell the product. They will have to give you a certain amount of money a number of times a year for the privilege.
The tricky bit with selling or licensing your patent rights is finding a buyer.
You must also make sure your patent is bulletproof. The patent rights are everything. You absolutely should not try and write your own patent. If you want to have any chance of making a significant profit, you must use a professional patent attorney (Albright IP).
A patent is a complex technical and legal document. It is highly unlikely that you will succeed if you try writing the patent yourself.
Again, consider what you want for the long term. You need to invest to stand any chance of successfully selling your idea to a third party experienced in such purchases.
The tricky bit with selling or licensing your patent rights is finding a buyer
The second option is to start your own business, build your own product, system or process, and sell it. As the business grows, it is protected by your patent. Providing the patent is done well, a competitor will struggle to compete with you. You can therefore keep all or most of the market to yourself, and your business becomes more valuable.
When you are ready to sell your business after a few (or many) years, a buyer will pay a lot more because of the protection that your patent gives. A buyer or investor needs to have protection for their investment. If there is no patent, or the patent is poor, then there is much greater risk for the buyer. As such, the buyer is likely to want to pay less.
- Decide if you want to sell/licence your invention, or build your own business
- Selling or licensing will allow you to walk away immediately without the cost of making product
- Starting your own business to sell your product will allow you to build and grow with a view to selling everything in the future for a lump sum
- It may be more difficult to find a buyer who wants to simply buy the patent outright without the market being first proven
- Starting your own business and making your own product will inevitably require funding
Write Your Patent Application
If you are serious about making money from your invention, you should ask a professional patent attorney to handle your patent application.
As above, a patent is a complex technical and legal document. If you want to have any chance of selling or licensing your patent rights, or enforcing the patent against a competitor who is copying your idea after starting your business, you will absolutely stand the best chance by investing at the beginning in proper legal advice and guidance.
You can write your own patent application. You can file your patent application yourself. However, if you make a mistake, especially if the idea is then made public, you can lose everything. It is extremely serious and onerous.
Furthermore, if you miss a deadline, you can lose your patent rights. Again, I cannot emphasise this enough, if you are serious about commercialising your idea and your long term goal is to sell the idea or the related business, invest early on with some initial legal advice and guidance from a good quality patent attorney. You do not have to take the advice, but do just ask so that you do not make a critical error due to lack of knowledge and understanding.
To write the best patent document for you possible, your patent attorney should also be an engineer or scientist. You must also give him or her a complete ‘picture’ of your idea, as well as any alternatives, modifications or other options.
Try hard to set everything out right at the beginning. It will be more expensive to add in material later on. Very often, if will be impossible to add in things that are missed if it is more than 12 months after your patent application was filed. This is critical.
If you make a mistake, especially if the idea is then made public, you can lose everything
You are tied in to what your patent document says. You should assume that you cannot add in any new material later on. If the patent office examiner knocks your idea out in the first round, you must have back up positions in your patent application to allow a counter. If you do not, your patent will not be granted, and everything will be lost.
- If you are serious about your idea, ask a patent attorney to write your patent application
- There are many deadlines and critical legal aspects, if any of these are missed, you will lose everything
- You can write and file your own patent application, but this is not advisable, it is unlikely to be worth the paper it is written on
- If a buyer or investor sees that you have written your own patent application, they are unlikely to take you seriously
- Give your patent attorney all the technical detail along with the ‘inventive concept’, make sure nothing is left out
- You should assume that you cannot add in material to your patent application later on, if you miss it out at the beginning, you may lose everything
File Your Patent Application To Obtain Patent Pending Status
As soon as your patent application is filed at the patent office (if you are based in the UK, then it will usually be the Intellectual Property Office), you will have ‘patent pending’ status. You can then disclose your idea, and start to market and sell it.
Do not publicly disclose your idea until your are patent pending.
You may think that your idea needs worldwide protection. Worldwide patent protection can be expensive. Since there is an international legal convention, you can start your patent first in the UK, and then within 12 months decide whether or not to protect overseas markets. This keeps your risk and investment lower.
A main benefit of first filing your patent application in the UK is that the UK Patent Office Examiner will provide an initial assessment of your idea around 6 months after filing. This will tell you the likelihood of obtaining your patent, and whether you should persevere.
Do not publicly disclose your idea until your are patent pending
Another benefit is that the official fees for filing your patent application first in the UK are low, presently at the time of writing only £150 GBP. Again, this helps to keep your risk and expenditure lower.
It is advisable to pay the official fees on filing, and our patent attorneys do suggest this 99% of the time. The initial assessment of your idea will take about 6 months to be returned by the Patent Examiner. The initial assessment is only performed if the fees are paid. The official fees can be paid within 12 months, but if you leave payment until later on, you will have to make crucial future decisions about protecting overseas markets without any useful feedback or benchmark. This is not advisable.
- Once your patent application is filed, you will be ‘patent pending’
- File first in the UK to keep costs down
- You have 12 months to protect overseas markets
- Pay the official fees on filing, do not delay
- The initial benchmark and assessment of your idea is returned by the Patent Office in around 6 months after filing, this is highly useful data
How To Patent Worldwide
Once you are patent pending in your home territory (usually the UK for the majority of our local clients, since we are based in the UK), then there is a 12 month grace period to allow you to submit counterpart patent applications in overseas territories to also protect those markets, whilst allowing a link back to your first patent filing.
Most of our clients will want to protect not only the UK market, but also mainland Europe and North America. Many will also want to protect Asian territories, such as India, China, Japan, South Korean, along with Australia and New Zealand.
At any time within the 12 months after filing your UK patent application, follow up applications can be submitted to cover overseas territories, and there are two options:
- File multiple specific patent applications in all the overseas territories that are of interest, or
- File a single international patent application.
If you know exactly where your overseas markets are, and you are happy that protection in no other markets will ever be needed, then submitting specific patent applications in the countries of interest is fine. After the 12 month period elapses, the patent-protection door is effectively closed, and any territory which is not covered can make, use and sell your idea.
The decision where and where not to patent is therefore critical, and must be made by the first anniversary deadline of your first UK patent filing.
The alternative is to submit an international patent application (also known as a PCT application).
There is no worldwide patent. As such, the international patent application will never become a worldwide patent. However, it is an extremely useful mechanism, and around 95% of our clients use this option, because:
- It provides provisional patent protection in 150+ territories worldwide;
- It keeps your options open and flexible regarding potential markets that you may want to cover;
- If you are considering two or more overseas territories for patent protection, it is the cheaper option in the short term;
- It effectively ‘buys’ you an extra 18 months of time to decide where your overseas markets actual are;
- It keeps buyers, investors and competitors on their toes, giving you more leverage and time to develop your market.
Wrapping It All Up
- Keep you idea secret until you’ve discussed it with a patent attorney
- Use the free patent searches that are available to see if your invention is new
- Take a few steps back to decide what your clever ‘concept’ actually is, this is important for your patent
- Think longer term – what do you want to achieve: licence or start a business?
- The granted patent is what you will sell, don’t be cheap, invest and ask for professional help from a good quality patent attorney
- Once your patent application is filed, you will be ‘patent pending’; now you can start marketing and selling the idea
- Start your patent in your home territory, then file overseas in 12 months with a link back.
The advice above is reasonably general. as mentioned a couple of times, patenting an idea is a complex and serious legal process. If you intend to commercialise your idea, do not try to protect your idea yourself. Please ask for professional legal advice from one of our patent attorneys. We are more than willing to help, and to answer any questions. We want you to succeed.