Process for Obtaining a Patent—Part 2


This is the second part of the two-part blog on the process for obtaining a patent.  An excellent flowchart describing this process was introduced in the first blog and it is reproduced here. Steps 1 through 8 of the flowchart were discussed in Part One of this two-part blog. (Note that the flowchart below is full of referenced links on the USPTO site.

The real nitty gritty of the patent process is found between steps 8 and 11. By now, you’ve reviewed the prior art (step 1) and you have decided to proceed to file a non-provisional patent (step 4).  Your non-provisional patent application filing typically involves, at a minimum, 2 or more documents. They are:

  • a signed declaration (also called an “oath”);
  • a specification; and  one or more claims and drawings.

You can access the declaration form (as well as all relevant patent forms) online. The general format and requirement of the specification, claims, and drawings—all of which make up the “application”—are specified in patent law. If an attorney or agent is filing the application for you, a signed power of attorney is also filed along with the application.  Also, either at the time of filing or soon thereafter, a USPTO filing fee is paid.  A typical minimum filing fee presently totals just under $500, although the fee can be higher for larger organizations and/or for larger patent applications filings.Patent Process

Once your application is successfully filed you will receive a patent application number. Initially, your application is checked to see that it conforms to overall formatting requirements. If there is a formatting or other problem, you will be notified of the “informalities” and you will be given a time period of a month or more to file necessary corrections. If the application conforms, it is placed in line for a USPTO Examiner to examine the application—step 9.

The time to receive a response from the Examiner after filing is quite variable. A “fast” response is considered 9 months or less, whereas a typical response can be longer and well over one year.  The vast majority of patent applications today go through a so-called “prosecution” process (steps 10 and 11), where the Examiner can point out other prior art and/or other reasons why parts of the application are objected to or rejected. The prosecution phase, which can take one or more back-and-forth rounds with the Examiner and can span months or longer, involves carefully reviewing the Examiner’s comments and responding to them. This phase typically calls for the experience of a registered attorney or agent—as a skilled response can make the difference in receiving an allowance (ie. receiving a patent—steps 11 and 12) or a rejection or abandonment (not indicated in step 11, but certainly possible).

Steps 12 and 13 (paying fees) are part of a “happy ending” –meaning the USPTO grants your patent!

Haim Factor is a registered USPTO Patent Agent with nearly a decade of experience in patent drafting, prosecution, and overall IP strategies. His clients take advantage of his rich experience of over 25 years in business development of a wide array of B2B and B2C products and his experience with intellectual property protection both within the US and internationally.

He can be contacted at: and at 302.200.1424.

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