Can You Patent an Idea? The Complete Guide

Can you patent an idea?

To qualify for a patent, according to the USPTO, an invention must be: 

• Useful. It needs to work and have some sort of use case (i.e., it can’t just exist as a theory or concept). 
• Well-documented. You’ll need clear, detailed instructions showing how to make and use your invention. 
• Novel. It must be new (i.e., no one else has created or publicly shared it before).
• Non-obvious. Your invention can’t just be a simple or predictable modification of something that’s already been invented. 

You can’t technically patent an idea based on these requirements, but don't let that discourage you. What you can patent is a fully developed invention that puts your idea into practice. Here are some additional considerations to keep in mind before starting the patent filing process.

Inventions cannot be too abstract

As per United States patent statute (U.S.C. 35), you can't file a patent application for an abstract invention. For example, if your invention is not tied to any particular process or application, then it is not a patentable invention. It actually has to help someone make a decision, move a machine in the real world, or otherwise make something useful happen. 

For instance, a mathematical formula on its own might be difficult to patent. However, if the inventor can show how it actually helps another process or how the learning outcomes significantly improve as a result of the formula, it may become easier to patent.  

Inventions cannot be natural discoveries

If you are fishing in the backwoods and pull a mysterious new fish from the pond, then you cannot patent it—even if you are the first one to ever find it. You have to do more than discover something to get patent protection. You have to purify it, modify it, or incorporate it as part of a bigger invention.

Inventions must be defined

Imagine that you discover a plant extract that is a potent antioxidant. In low concentrations, it treats acne, and you speculate that in high concentrations, it could reverse heart disease or cure cancer. While your acne treatment is likely an invention, you almost certainly need to do more work to formulate the antioxidant to treat heart disease and cure cancer—you need to define the scope and not overstep your great invention.

What is a utility patent?

There are many different kinds of patents, but when most people talk about patents, they usually mean utility patents. Utility patents protect four kinds of intellectual property:

1. A process. A process is any combination of steps or methods.
2. A machine. A machine is any combination of parts.
3. A manufacture. A manufacture is a combination of materials to make a new and useful improvement.
4. A new composition of matter. A new composition of matter could be a chemically new substance, like a drug or other formula.

In reality, many inventions are combinations of these categories. For example, a new telecommunication system may combine processes and machines. Or, a new kind of concrete may combine new combinations of existing materials as well as completely new chemicals.

One way to tell if your idea is an invention is if you can describe it in the terms that utility patents protect. If you cannot tell if it is a process, a machine or some combination of the two, your invention may just be an idea, which you cannot patent.

Other common patents are design patents and plant patents. 

• A design patent provides legal protection for the way something looks. It ensures the visual elements of a product, like a piece of jewelry or electronic item, aren’t exactly identical to an existing product in terms of shape, texture, and "surface ornaments."
• A plant patent, as you can probably guess from the name, protects new varieties of asexually reproducing plants.

For plant and utility patents, you have the option to start with a provisional patent application—a simpler filing that secures a filing date for up to 12 months. You’d then submit a nonprovisional application within those 12 months to apply for the full patent.

How to patent an idea in 7 simple steps

Patents are a way to protect valuable intellectual property for 15–20 years, establish business credibility, compete at high levels, and make a financial profit. If you feel you have a great idea for an invention, here's how to protect it and turn it into a lucrative financial opportunity.

Step 1: Develop your idea into an invention

Given the narrow requirements to establish a patent, you’ll need to transform your idea into something more concrete and patentable. In other words, you’ll want to develop and test your invention until you can explain how it works and exactly what makes it unique.

There’s no single method to this, but you can start by trying these tasks:

• Create detailed descriptions of how your invention works.
• Make sketches, drawings, and diagrams of your invention (including from multiple angles).
• If possible, build a prototype. 
• Record the development process and any results from testing.

Your ultimate goal is to become an expert on your invention. The details and granularity cannot be stressed enough—you should be able to clearly explain what problem it solves and what makes it different from anything else discovered. 

Step 2: Conduct a patent search

Next, you’ll cross-reference your invention with others to ensure it’s truly unique and novel. Keep in mind that if someone has already patented your invention or created similar prior art, your application will be rejected, and you’ll lose the time and money invested in the process.

You’ll want to research existing patents and pending applications that might be similar to your invention. At this stage, many inventors work with intellectual property or patent lawyers to conduct a thorough search. Still, you can use these free databases to look up existing patents by keyword, classification, inventor, and other relevant fields: 

• USPTO Patent Public Search
• Google Patents (you can also use this to search for international patents, if desired) 

You can find other patent databases online, including specialized tools for specific industries or regions. Better yet, you can use LegalZoom’s patent search services to get a comprehensive report for your invention at a fixed cost. 

Step 3: Choose the right type of patent application

As discussed, you have the option to file a provisional application for a plant or utility patent. This gives you up to a full year to prepare a stronger nonprovisional application, not to mention test market demand, gauge investor interest, or continue refining the concept. During this period, you can even apply “patent pending” status to your invention.

Provisional applications also have fewer paperwork requirements, but you’ll eventually need to submit all required documentation with your full nonprovisional application. When you get to this point, the nonprovisional application will lead directly to patent review. 

However, keep in mind that it’s a tedious and complex process where even small mistakes can lead to rejection. 

Step 4: Prepare and file a patent application

Each type of patent has its own application, all of which are submitted through the Patent Center—the USPTO's electronic filing system. You can also work with LegalZoom to submit a provisional, utility, or design patent application. Simply tell us about your patent idea, and we’ll have a USPTO-registered patent attorney prepare your application. 

For a provisional application, you’ll need to submit a cover sheet that includes the following: 

• Names and residences of all inventors
• Invention title
• Attorney information (if applicable)
• Correspondence address
• Any U.S. government property interest

For nonprovisional patents (design, plant, or utility patent applications), you’ll need these forms and information: 

• Application transmittal form
• Fee transmittal form
• Application data sheet
• Specification
• Drawings
• Oath or declaration

Important: Each patent type has its own specific forms, requirements, and rules. Be sure to visit the USPTO’s website and review the applicable patent guide (found in the left column). You’ll also need to pay the necessary fees along with your application (see more below).

If at any point you have questions, aren’t sure what to do, or want to review your application, it’s best to consult a knowledgeable attorney, such as the ones you can work with via LegalZoom’s patent products. 

Step 5: Respond to USPTO communications

After submitting your application, the USPTO will first review it for accuracy. If they find any issues or need additional information, they’ll follow up with instructions on what you need to fix and how to respond.

Later, the office will assign an examiner to review your actual application and determine whether your invention meets the requirements to receive a patent. It’s worth noting that this can take several months (if not years), but you can check the current status in the Patent Center.

When the time comes, your patent examiner will notify you via “office actions” if you need to make any corrections or, if your application was rejected, the reasons for that decision. You’ll need to respond in a timely manner to any office actions in order to keep your application moving forward.

While this can feel frustrating, remember that about 89% of patent applications get rejected on the first try. Most successful patents go through multiple rounds of review and revision before approval, so it’s perfectly normal if you receive an initial rejection. 

Step 6: Get approval and pay fees

Once your application is approved, the patent examiner will send a notice of allowance and outline the final fees you owe. While you pay an initial filing fee when you submit your application, the USPTO also charges an issue fee and, in some cases, a publication fee. 

These fees must be paid within three months of the notice date—and this deadline cannot be extended. The examiner will specify the exact amounts in your notice, so review it carefully and submit payment promptly to avoid losing your patent status. 

Step 7: Maintain your patent

Throughout the life of your patent—up to 20 years for utility and plant patents or 15 years for design patents—you want to stay ready to protect your rights. If someone uses or copies your invention without permission, you should contact a lawyer immediately to discuss your options and take action.

Additionally, you’ll need to pay maintenance fees for utility patents at 3.5, 7.5, and 11.5 years after your patent is granted. While you have a six-month grace period after each deadline, you’ll face penalties for late payments and could risk losing your patent rights entirely.

The USPTO won’t send reminders, so mark these dates carefully or work with a patent attorney to track upcoming deadlines.