A patent gives the owner legal rights in respect of a new invention that exclude others from selling, making, using or profiting from their invention for a limited time period.
If you have invented a product or process which is new, innovative and has industry applications, you might be considering applying for a patent to the Intellectual Property Office (IPO).
But with only 1 in 20 applicants successfully receiving a patent, if you are looking at how to patent an idea, it is important to first understand what you will need to show to be eligible for this type of intellectual property protection.
Is a patent the right option to protect your idea?
Patents are one of many different ways to protect your intellectual property. The process of patenting your invention is long and complex, and there are no guarantees that you will secure the eventual patent, without professional assistance, only 1 in 20 applicants successfully receive a patent. You will also have to fund any legal action to defend your patent.
In the first instance you should check that a patent is the best course of action over other options to protect your idea. If you are confident that patenting is essential for your idea, it will be critical to understand the process of how to patent an idea.
How to patent an idea
Step 1: Ensure your idea is patentable
The first step in patenting your idea is to check that it is in fact eligible for a patent. To be eligible, you will be required to show that your idea is new, innovative and has potential industry application.
New. Your invention must be an original and novel. It cannot have been already released to the public in any way or be similar to an existing product or process at the point when the patent is filed.
An important step prior to starting you patent application is to undertake research to confirm that your idea satisfies the requirement to be new, and to check whether there are existing products or patents out there similar to yours or which may prevent your invention from being patented.
You can search for existing patents using the IPO’s online searchable patents journal, patent information and document service (Ipsum) or patent publication service.
Innovative. Your invention must be a demonstrable step forward in terms of innovation. Your invention must offer something that goes beyond that of existing products or knowledge and that would not be obvious to anyone with a good knowledge of the subject.
Have potential industry application. Your invention should have the capacity for industry use or being manufactured and sold. It must therefore have some kind of practical form whether as a product, material or process.
Step 2: The application form
The next step is to prepare your patent application.
There are four parts to a patent application each with specific criteria:
Description: A description that fully explains the invention as it is at the point of filing (information cannot be added later), including the background of the invention, what problem/s it solves, how it works and sufficient detail to make it possible for others to create it. If the description exceeds 35 pages an excess fee of £10 per page is charged.
Drawings: A good-quality set of drawings illustrating the description of one or more of the invention’s embodiments. The drawing can include different views or the invention, for example from different angles or as a cross-section, or describe a method through a flow chart of steps.
Claims: There is one lead claim, a precise legal statement of the invention you are looking to protect which defines the invention and sets out its distinctive and core technical features. You can then set out any subsidiary features of the invention as “dependant claims”. If you include more than 25 claims there is an additional fee of £20 per claim.
Abstract: Summarising all the invention’s technical elements.
If you are not the inventor, for example you are applying on behalf of a company, or there is more than one inventor and the others are not listed as applicants, you will need to complete a statement of inventorship along with the application.
The completed application should then be submitted to the IPO for consideration. Filing your application can be done either online or by post. The cost of an online application is £60 while the postal application costs £90 (at July 2018). These prices are for standard applications and additional pages for descriptions or claims cost extra. These prices also represent only the application part of the process, with future steps also having fees attached.
When you submit your application you will receive a receipt from the IPO. The receipt will state the application number along with the date the application was filed.
Once you have received the receipt you will be able to refer to your patent as “patent pending” or “patent applied for”.
Step 3: IPO searches and reports
Having submitted your application you need to request that the IPO undergo a search to check there are no existing patents which would invalidate your application. You must request the search within 12 months of the date you filed your application but if you are hoping to speed up the patent process you can request a search at the same time as submitting your application. The IPO search costs £150 for online applications and £180 for postal applications.
You should receive a report from the IPO with the results of their investigation within about 6 months of placing the request. Depending on the results of the report, you have the choice to either continue with the application or abandon it at this point. This means you can avoid the additional costs of the remaining application process if your patent has little chance of being approved or you have changed your mind.
Step 4: Application publication and substantive examination
Your application will be published around 18 months after filing. Part of you application, including your address, will then become publicly available in both the IPO records and the online patents journal on the IPO website.
It is important you keep track of when the application is published as you will then only have six months in which to request a ‘substantive examination’.
A substantive examination checks that the details on your application form, particularly the description and claims sections, match and are of patentable quality. The examination also determines whether the invention is sufficiently new and inventive to warrant patenting.
The substantive examination feedback will state whether your application has met the legal patent requirements. If it has not, the report will also inform you of what steps to take. When you receive the substantive examination, you must respond the IPO’s comments. In order to proceed with your patent.
The fee for substantive examinations of online applications is £100 and for postal applications £130.
Results and next steps
The IPO will either grant or refuse your application and you should receive the IPO’s decision in approximately 4-5 years.
If your application is granted then you are able to begin commercially benefiting from the product immediately. You can publicly launch the product with full patent protection and can commence selling, licencing or mortgaging your patented invention.
A key concern throughout the patent application process will be ensuring confidentiality of your idea.
If discussing details, descriptions or information regarding your invention with other parties, such as potential manufacturers, you should first consider using a confidentiality agreement. An effective confidentiality agreement should be drawn up by an experienced legal adviser to ensure your interests are fully protected and your patent application is not compromised.
Why seek legal advice:
The patent application is complicated, with a high application refusal rate. The process is also long, taking on average 4-5 years to complete and the costs need to be considered against the alternative forms of IP protection.
Seeking professional legal advice on all options to protect your idea will help ensure you proceed with the most effective course of action to protect your idea from unwanted exploitation. If you do decide to proceed to patent an idea, guidance and support from an experienced adviser will help maximise your chances of making a successful application.