Last Published: 7/7/2016

To get a U.S. patent, an application must be filed with the U.S. Patent and Trademark Office (USPTO), which determines whether a patent application meets the requirements for issuance.

Step 1: Is your invention patentable?

Before you file for a patent, you should determine if your invention can be patented:

  • An invention cannot be patented if (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent; or  (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States.
  • Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be non-obvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.
  • The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
  • The United States Patent and Trademark Office (USPTO) strongly recommends that all prospective applicants retain the services of a registered patent attorney or patent agent to prepare and prosecute their applications. The preparation of an application for patent and the conducting of the proceedings in the United States Patent and Trademark Office to obtain the patent is an undertaking requiring the knowledge of patent law and rules and USPTO practice and procedures, as well as knowledge of the scientific or technical matters involved in the particular invention.

Step 2: Conduct a search of prior art

A search of all previous public disclosures including, but not limited to, previously patented inventions in the U.S. should be conducted to determine if your invention has been publicly disclosed and thus is not patentable. While a search of the prior art before the filing of an application is not required, it is advisable to do so.

A registered attorney or agent is often a useful resource for performance of a patentability search. After an application is filed, the USPTO will conduct a search as part of the official examination process. Conducting a thorough patent search is difficult, particularly for the novice. Patent searching is a learned skill. The best advice for the novice is to contact the nearest Patent and Trademark Depository Library (PTDL) (link is external). You should also seek out search experts to help in setting up a search strategy.

Step 3: Filing for a U.S. Patent

To get a U.S. patent, you must file an application with the U.S. Patent and Trademark Office. A patent application is a complex legal document, best prepared by one trained to prepare such documents.

There are two types of patent applications:

  1. Non-provisional application, which includes: (1) A written document which comprises a specification (description and claims), and an oath or declaration; (2) A drawing in those cases in which a drawing is necessary; and (3) Filing, search, and examination fees. The applicant must determine that small entity status is appropriate before making an assertion of entitlement to small entity status and paying a small entity fee. Fees change each October. The fee schedule is posted on the USPTO Web site. A provisional application, which was designed to provide a lower cost first patent filing in the United States and to give U.S. applicants parity with foreign applicants. Claims and oath or declaration are NOT required for a provisional application.
  2. Provisional application provides the means to establish an early effective filing date in a patent application and permits the term "Patent Pending" to be applied in connection with the invention. Provisional applications may not be filed for design inventions. The filing date of a provisional application is the date on which a written description of the invention, and drawings if necessary, are received in the USPTO. To be complete, a provisional application must also include the filing fee and a cover sheet specifying that the application is a provisional application for patent. The applicant would then have up to 12 months to file a non-provisional application for patent as described above. The claimed subject matter in the later filed non-provisional application is entitled to the benefit of the filing date of the provisional application if it has support in the provisional application.

Publication of patent applications is required by the American Inventors Protection Act of 1999 for most plant and utility patent applications filed on or after November 29, 2000. On filing of a plant or utility application on or after November 29, 2000, an applicant may request that the application not be published, but only if the invention has not been and will not be the subject of an application filed in a foreign country that requires publication 18 months after filing (or earlier claimed priority date) or under the Patent Cooperation Treaty. Publication occurs after the expiration of an 18-month period following the earliest effective filing date or priority date claimed by an application. Following publication, the application for patent is no longer held in confidence by the Office and any member of the public may request access to the entire file history of the application.

View a flow chart visualization of the U.S. patent filing process.

More Information on Obtaining a Patent 

For more information on filing for a patent in the United States contact the USPTO at (800) 786-9199 or (703) 308-4357. To file electronically, visit USPTO’s Electronic Filing System (EFS).  If you have questions regarding foreign patents, please call 1 (866) 999-HALT.