Can You Get a Patent without a Lawyer?
You have an invention -- something that would fill a need and make life easier. It might even make you some money, if you could get the exclusive right to manufacture it or sell the rights to it.
In other words, you need a patent.
But you have more imagination than money, and the patent attorney wants $5,000 to file a patent application for you. Must your invention gather dust in the garage, or can you apply for a patent yourself, without a lawyer?
Thousands of inventors have successfully navigated the system without lawyers and have been rewarded with patents. In fact, federal law specifically requires patent examiners to help people who seek patents without a lawyer's help.
Getting a patent requires work -- you must know how to describe your invention and understand what qualifies an invention for a patent. These aren't "legal" skills, and learning them is not much different from learning any other skill. Some steps are easy, others are more difficult. Almost certainly, some of your learning will be by trial and error. But by taking the process one step at a time, you can win a valid patent for your invention.
Here's a quick look at the steps necessary to get a patent. You'll see that nothing about the process requires a lawyer. There is no court, no jury, no need to understand cases or read statutes. The Patent and Trademark Office has some specific rules, but you can follow them as you would a recipe in a cookbook.
Describe the Invention on Paper
Use a spiral-bound notebook, and round up a couple of people who are willing to sign as witnesses. Depending on the invention, you may also need to build and test it, documenting all of these efforts in your notebook (and having them witnessed as well).
Decide Whether or Not You Might Have a Protectable Invention
This determination requires a little law and a lot of common sense. Basically, you must fit your invention into one of the Patent and Trademark Office's broad categories and satisfy yourself, preliminarily, that the invention is something new.
Assess the Commercial Potential of Your Invention
It is possible to get a patent on an invention that has no commercial potential at all, but most inventors don't bother.
Decide Whether or Not Your Invention Is New Enough to Qualify for a Patent
To make this decision, you need a thorough knowledge of previous developments (called the prior art) in the area of your invention. Typically, this involves searching the U.S. (and sometimes foreign) patents and other publications for prior art that might describe related inventions.
Patent searching is confusing at first, but can be mastered with practice. It is a research rather than a legal skill. Most patent attorneys hire professional searchers to carry out patent searches for their clients, and you may want to do this, too. But if you are a serious inventor, sooner or later you'll want to learn how to search the patent database. Patent search centers on the Internet make this easier than ever.
Once the patent search is completed, you can compare your invention with previous developments and answer two questions, neither of which necessarily requires legal expertise, although the observations of an experienced patent professional can be helpful:
- Is your invention different in some important part, element, or aspect from all previous inventions?
- Would someone with ordinary skills in the field of your invention consider your invention unobvious -- that is, surprising? For example, if you invented a computer device, would it make a computer engineer ooh and ah?
Draft and File the Patent Application
Here is where you need to take a deep breath and perhaps get some outside guidance. The application process can be broken down into 25 discrete steps. Taking it one step at a time -- no problem. Trying to deal with all 25 steps at once -- freak out.
Broadly put, there are four main tasks involved in drafting a patent application:
- Describing your invention's background, including why your invention is different from other relevant inventions and deserves a patent.
- Illustrating your invention through drawings, flowcharts, or diagrams (many inventors assign this task to graphic artists, though you can do it yourself with a self-help resource).
- Describing your invention's physical structure (if any) and how it works.
- Describing exactly what aspects of your invention you wish to patent (the patent claims).
The first three tasks involve no particular legal skill. Writing patent claims, however, is a little different. These claims describe your invention in a way that will later be used to determine whether someone else is infringing your patent. You may want to have a patent attorney or agent review your claims before you submit them to the Patent Office. Or you can even ask the Patent Office to write a claim for you. They will -- for free -- based on the rest of your application.
Deal with the Bureaucracy until Your Patent Is Issued
After you file the application, you must respond to questions and objections raised by the Patent Office and negotiate for the best patent you can get. You may want to get some professional advice -- especially if the patent examiner seems particularly obstinate -- but in many cases the process is generally straightforward and doesn't involve difficult legal principles.
Copyright © 1999 Nolo Inc. All rights reserved.
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