There are many misconceptions about getting a patent, the worst of which are that any inventor can get a patent and that the specialized help of a patent agent is not necessary. In reality, neither of these assumptions are true. Misunderstanding the process can result in years of wasted labor and thousands of dollars squandered in pursuit of an unrealizable dream. A faulty patent may be difficult to protect and could be financially disastrous.
Before Filing an Application
Many types of things can be patented -- provided they meet certain criteria described in U.S. law. While most patents are granted to corporations, the days of the independent inventor toiling in a garage are alive and well.
The first hurdle an inventor must clear is to demonstrate that her invention is useful, novel and "nonobvious." As long as the invention performs some function of use and actually works, it fulfills the utility requirement. Generally if the invention is new, different, and previously unknown, it passes the novelty test. The third prong, "nonobviousness," is described by the U.S. Supreme Court as whether the differences between the invention and a previously patented invention would be obvious to an ordinary person familiar with the field where the inventions are used. The inventor or her attorney or agent conducts an exhaustive search of existing patents to make sure the invention will pass the three tests. The patent search requires special skills and is one reason inventors should consult a patent attorney.
The Application Process
The second reason that patent agents or attorneys should be used to secure a patent is the complexity of the application process.
"Many people think that a patent application is a form filled out by the inventor, like an application for employment," writes patent attorney Michael H. Jester in his book "Patents and Trademarks: Plain and Simple." "This is certainly not the case. A utility patent application is a uniquely written narrative document that must satisfy very stringent standards as to form and content."
Patent applications contain three sections describing the specifications of the device; the claim, or description of what the thing does; and an abstract summarizing application. The specification section is subdivided into sections that make the case for why the invention deserves a patent, what other patents exist in the field, how it is put together and how it works. The application also usually contains detailed illustrations of the invention.
Once the application is filed with the U.S. Patent and Trademark Office, a patent examiner checks it to make sure it is properly drawn up and meets the legal requirements to grant a patent. While this sounds simple, it normally involves a great deal of back-and-forth communication between the examiner and the inventor's agent. In practice the examiner often rejects the application, and it is up to the inventor to persuade the examiner to reverse his decision. Jester reports that this process can take two years or more.
