As soon as you or your business has invented something new, it is important to seek legal protection for that innovation. Every day that your invention remains unprotected, it remains vulnerable to infringement. Similarly, you or your business remain vulnerable to claims that you’re illegally benefiting from another’s intellectual property. Thankfully, it doesn’t generally take much work to acquire legal status known as “patent pending.”
You can even seek this status without investing in an attorney’s assistance. It is generally advisable to work with an attorney when filing your final, formal patent application with the U.S. Patent and Trademark Office. However, you can take this first critical step to obtaining intellectual property protection on your own. You can’t claim that your work is “patent pending” until you have submitted either a provisional or a non-provisional patent application with the USPTO. Although you’ll likely benefit from legal guidance when you prepare your non-provisional application, you can complete and submit a provisional application yourself.
Patents – The Basics
The U.S. Patent and Trademark Office issues three major categories of patent protection. First, plant patents extend to unique, asexually reproducing plants and hybrids. Second, design patents are generally issued for unique, ornamental constructions of manufactured products and processes. Third, utility patents protect unique and useful products, processes, and machinery. 9 out of every 10 patents issued in the U.S. are utility patents, so your invention will likely need this kind of protection.
Note: If your invention needs the safeguards of a design patent, you won’t be able to submit a provisional patent application with the USPTO. The USPTO only accepts provisional patent applications for plant and utility inventions. This is important because you’re more likely to need legal help with a non-provisional patent application and this is the only submission you can make if your invention is a design. You can seek patent pending status on your own, but make sure your process is informed before you move forward alone.
Provisional Patent Applications vs. Non–Provisional Applications
The differences between provisional patent applications and non-provisional applications are significant. Your work is classified as patent pending (and can be marketed as such) as soon as either kind of application is submitted to the USPTO. However, these applications don’t function in the same ways. When a non-provisional patent application is submitted to the government, the USPTO stamps it with a filing date.
This filing date is very important. It is the date against which the USPTO will judge the originality of your intellectual property. Therefore, if you wait too long to secure this filing date, the uniqueness of your invention could be compromised by emerging prior art. Similarly, it’s the date against which the courts will judge your ownership of the intellectual property in question. Should you be sued or need to sue someone else in regard to intellectual property rights in the future, this filing date will be the foundation of your case.
Patent Pending – The Basics
While it’s important to secure a favorable non-provisional application filing date, it’s also important to make sure your non-provisional application is complete, supported, and likely to be approved. The process of completing a successful non-provisional patent application takes time. This is why (if you’re not submitting a design) you should consider filing a provisional patent application on your own first. Before you work with an attorney on your detailed, time-intensive, final non-provisional patent application, you can use a provisional patent application to secure patent pending status.
Once you submit a provisional patent application, that application’s filing date becomes the favorable filing date for the non-provisional patent application you’ll submit down the road. As long as you submit your non-provisional patent application for your invention within one year, your favorable provisional patent application filing date will transfer to your non-provisional patent application. The provisional patent application process is straightforward and not very time intensive, you can do it yourself without incurring attorneys’ fees.
Obtaining Patent Pending Status Without Hiring a Lawyer
You can obtain patent pending status by either submitting a non-provisional patent application or provisional patent application to the USPTO. The provisional application process is straightforward. It’s easier to obtain patent pending status without legal help by submitting this form on your own. You’ll need to submit a completed non-provisional patent application within one year of your provisional filing date. If you need more than one year to complete this final application, don’t file your provisional patent application until you’re less than a year from filing your non-provisional application. You’ll lose your patent pending status if you no longer have an active filing date for your invention.
You don’t need help to obtain patent pending status through a provisional patent application. But you’ll likely need help for the non-provisional patent application part of the process. Asking an attorney can help you make an informed decision about when to file your provisional patent application.
When you submit your provisional patent application, you’ll need to enclose a modest filing fee. The USPTO website features a table of all fees associated with the patent application process. Once you know how much your filing fee will be, you can begin completing your provisional patent application. This application is generally less than 10 pages in length. Primarily, you’ll be asked how your invention is constructed and used. You’ll likely need to describe your work with both words and drawings.
Patent Application and Searches
Once you begin work on your non-provisional patent application, you or your attorney will need to conduct a patent search. Patent searches help to ensure that your invention is truly unique and eligible for patent protection. If your work too closely resembles existing intellectual property, you’ll need to tweak your work until it becomes unique.
You don’t need to do a patent search before you file your provisional patent application. This is unless you want to make sure you won’t need to alter your work much. There’s one risk you take in not conducting a patent search prior to submitting your provisional patent application. If your work changes dramatically post-search, you’ll need to submit a new provisional patent application.
Intellectual Property Assistance Is Available
If you’re interested in protecting your intellectual property, consider scheduling a consultation with an experienced intellectual property attorney at LawTrades. Our intellectual property team can help you ensure that your non-provisional patent application is properly completed and submitted. If you’re uncomfortable preparing and submitting a provisional patent application on your own, we can handle that too. The intellectual property attorneys at LawTrades are passionate about helping inventors, artists, and innovative businesses protect their creative work. We look forward to hearing more about your creations and about how we can help to better ensure their protection.