This is not a substitute for legal advice.  An attorney must be consulted.

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The process for obtaining a patent is commonly referred to as "patent prosecution."  An inventor must file an application in the U.S. Patent and Trademark Office (PTO) less than one year after the first open disclosure or sale of the invention.  The application must include a specification, which describes and clearly claims the invention, drawings (if necessary), a model (if necessary), and an oath or declaration of the inventor.  35 U.S.C § 111 et seq.  A patent examiner (PTO attorney) conducts an examination of the application (37 C.F.R. § 1.1 et seq.) by searching the prior art and determining whether the invention satisfies the legal requirements of patentability.  If the patent examiner allows the claims, the PTO will issue the patent.  There is a two-year average time from patent filing to issue. 

            The six primary legal requirements of patentability are:

            (1) Patentable Subject Matter.  In order to be patented, an invention must fall within one of the categories of patentable subject matter.  Patentable subject matter is defined as any "process, machine, manufacture, or composition of matter," which includes mechanical, electrical and chemical technologies and processes.  35 U.S.C. § 101.  Phenomena of nature, mental processes and abstract intellectual concepts are unpatentable subject matter. 

            (2) Utility.  For an invention to have utility, it must be useful.  35 U.S.C. § 101.  Most inventions easily meet this requirement, but things like perpetual motion machines or drugs without known uses may fail.

            (3) Novelty.  The invention must be new and original as compared to previously known items.  35 U.S.C. § 102. 

            (4) Nonobviousness.  Even though an invention may be new or novel under 35 U.S.C.    § 102, it will not receive a patent if it is an obvious or trivial modification of previously known items.  35 U.S.C. § 103.

            (5) Disclosure.  Patent applications must sufficiently disclose the invention to enable a person skilled in the art to make and practice (use) the invention.  35 U.S.C. § 112.  Further, the patent application must disclose the "best mode" of carrying out the invention.  Withholding information because it is a trade secret may be fatal to a patent.

            (6) Precise Claiming.  The patent application must include one or more "claims."  Claims are "word-pictures" that define the legal boundaries of the invention.  The claims of the patent are examined to determine the scope of the patent's protection and are the most important part of the patent application.

The term of a patent is generally 20 years from the filing date.  The patent owner must pay maintenance fees at certain times during the life of the patent.  If these fees are not paid on time, the patent expires.

A patent application may be filed pro se, that is, by the inventor without an attorney.  However, due to the complex legal issues involved, consulting a patent attorney is highly recommended.  Before visiting an attorney, the inventor should complete the Patent Questionnaire attached as part of this program.  The average cost of preparing and filing an original utility patent application on an invention of minimal complexity is approximately $3500, and additional charges are likely to be incurred after filing.  AIPLA 1995 Economic Survey.