Don’t Forget To Check These In Your Patent Application!


Well, you have an idea that you think could really be a success if protected and monetized properly and thus you decided to patent it. To start off, you started searching “how to patent an idea” but the search engine bombarded you with information that is technical, legal and undecipherable. You are bewildered with the information that could be understood only by those professionals who are well-acquainted with the world of patenting. If this is the case, then this article could be of immense help to you as it will shed some light on how to go about patenting an idea. It will walk you through necessary steps that are indispensable to be present in your patent application.

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In this article, we are not getting in to trademark vs patent vs copyright etc. (i.e., “selecting which type of intellectual property right is right for you”) rather for this article let us assume you already know that patent is the best way to protect your idea.

Step No 1: Determine if your idea is broadly eligible to be patented

First things first, ideas are not patentable per se but only their implementation is a patentable subject matter. If you think you can make a time machine by following few steps, etc – you cannot patent it until you have some implementation details. So from here on, we will use the word invention instead of idea.

Second is to determine which type of patent would be relevant for you.  

Generally there are three types of patents that can be granted to inventors like Design Patent, Plant Patent or Utility Patent. A design patent is granted to an ornamental design for an article like the design of an airplane or a boat without any effect/improvement on functioning. A plant patent is granted to a new & distinct variety of plant that is produced asexually while the last and third type of patent is the utility patent which is provided to a machine, a novel process, article of manufacture or composition is subject to the approval s of matter.

Most of the patents granted in the United States are generally utility patents, so we will focus on that.

Accordingly, patentable subject matter for utility patent would be an invention if it’s a process, a machine, an article of manufacture, a composition of matter, or an improvement of any of these, but, natural phenomenon, abstract ideas,  and inventions deemed not useful are ineligible for patents. In order to determine if your idea can be patented, review the USPTO’s (US Patent and Trademark Office) list of what can and cannot be patented with the USPTO’s website (uspto.gov).

Step No 2: Determine the patentability of your invention, i.e., whether your idea is new, non-obvious and useful

To be patented an invention should be new, non-obvious and useful in its entirety. If your invention lacks any of these above mentioned three principles it may not be granted patent. Hence, it is advisable to ask yourself whether it passes all three tests before you start the process of patenting your idea.

In order to satisfy the “new” qualification ask yourself if you have heard about it or something quite similar to that idea anywhere before. If your answer is ‘Yes’ chances are that your idea can’t be granted a patent. For example if you intend to patent the therapeutic effect of Neem Leaf (Azadirachta indica) chances are that the knowledge already exists somewhere as people of various countries use it and thus probability of getting a patent for that is very slim.

In order to satisfy if your invention meets the “non-obvious” qualification, determine if it is something that others could easily think of, If ‘Yes’ probably you may not be granted a patent for that.

The third and last principle that you need to pass is ‘usefulness’ where you will have to furnish the proof that your idea will be useful to the end user.

Unless you can make these decisions easily, in order to get a neutral and factual evaluation – you should undertake a “Prior Art Search”. The whole process of prior art searches establishes the fact that your invention is not published in previous public disclosures (also called “prior art”). This includes searching through previously patented inventions in the U.S., foreign patents, and other printed publications/ recorded oral disclosures.

Some of the resources for conducting do-it-yourself patent search are:

For a comprehensive patentability evaluation, it is usually advisable to engage a patent search expert to conduct a quick patentability search covering both patent and non-patent literature.

Step No 3: File provisional or non-provisional patent application as per your need

Once you have determined the patentability of your invention and have clearly understood the novelty and advantages associated with your invention, the last and final step is to file provisional or non-provisional patent application depending on the stage of their innovation or business. A provisional patent application gives you a time period of 12 months to work on your invention after which you will have to file non-provisional patent application failing which may void your claim of priority. However, you can get the “patent pending” status soon after filing the provisional. It generally takes 3-4 years to get the final grant of the patent.

It is again recommended to use the services of a qualified patent professional to draft the patent application as the scope of protection will solely depend on how well written the application is. Writing patent application deftly from beginning will also save you a lot of money later on office actions.