Is getting a patent the first step in developing a product?

Not necessarily. Estimating marketability, technical feasibility and cost of manufacture are often more important. There's more material on this theme elsewhere on this site.

Having put that out of the way, let's look at what happens to a fairly typical US patent application, and at the costs and time involved. Some US application will not follow the path sketched out here. In other countries the detailed process may be a lot different.

Step One in the patent process: a search ($US 500-1500; 1-3 weeks)

A common first step is doing a "novelty search". The goal of this effort is to help you estimate just what sort of protection is available, and if it appears to be worthwhile proceeding. The cost of the search and the time to complete it will vary with the subject area of the invention. As a general rule, figure that the effort that goes into the search should result in a cost that is about 10% or so of the overall patenting cost. If you know the technology and market well, and think that you might be racing a competitor to the Patent Office, you might be best off skipping this step. Otherwise, a search is almost always worthwhile.

Step Two: Preparing and Filing the Application ($3000-8000; usually about 1-3 months)

Preparing the patent application is next. The time and cost are going to depend on the complexity of the invention and on the quality of the disclosure materials that you've put together to educate your agent or attorney about the important aspects of the invention. You should expect to work through several drafts of the application. Be critical. If you're happy with the first draft when you see it -- you probably won't be happy with the patent that it produces.

Drawings are almost always needed to fully explain an invention. Informal sketches are often used to speed up the filing process.

Step Three: A Long Wait (YMMV)

In the US, a very few applications are picked up for action by a patent examiner within 4-5 months of filing. Don't count on that. Expect to wait 14-24 months for most inventions. For popular, active technologies (e.g., computer software, biochemistry), expect to wait longer. Waiting isn't all bad -- in the US, if the PTO takes more than 14 months to send you an initial examination report, the life of your patent can be extended a day for every day they delay.

Patent applications are generally published 18 months after filing, which is often before examination has begun. Applications that are being filed only in the US may be kept secret until they actually issue as patents if the applicant requests non-publicaton at the time of filing.

Note that the process can sometimes be speeded up by paying additional fees or, if you are old or ill, by petitioning for accelerated examination.

Step Four: Examination and Argument ($US 400-1000; 1-3 months after the end of the long wait)

Eventually a patent examiner will read your application and compare it to what he or she thinks are the closest prior art references. In the US, 95% or so of these initial examination efforts lead to objections to formal features of the application (e.g., typographical errors, drawing formalities....) and/or to rejections of at least some of the claims. You and your agent or attorney then have to come up with some combination of fixes to problems that the examiner found and/or arguments showing where the examiner's comparison with the prior art led to a wrong conclusion.

Your reply to the examiner gets handled much more quickly than does the initial application. Most of the time a US examiner's second "Office Action" is sent to you within two months after your reply to his or her initial one.

Typical Step Five: Allowance ($US 500 or so, 1-3 months)

About 70% of US applications are ultimately allowed. Usually the second communication from the examiner is an allowance -- but it may be another rejection, a rejection of some of the claims and allowance of others, etc. There are too many possibilities to list them all.

And then -- another wait

The USPTO has been speeding up the issuance process and now has a guarantee -- if it takes more than 4 months after the issue fee was paid to publish and issue the patent, the life of the patent may be extended to compensate for the delay.

Total: $5000-10,000 spread out over 3 years or so -- and that's just for the US. Getting protection in other countries usually costs as much or more than it does in the US.

David A. Kiewit
Registered Patent Agent
5901 Third St. South
St. Petersburg FL 33705-5305
+1 (727) 656-0669 voice

+1 (760) 841-1989 fax
questions to: [email protected]
Copyright 2002-20017 by David A. Kiewit
All rights reserved



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