Patent FAQ

Please click on any question to see the answer.

What is a U.S. Patent?

A United States patent is a right granted by the U.S. government to a patent owner — i.e., an individual, a company, a government agency or some other legal entity that owns the patent — “to exclude others from making, using, offering for sale, or selling” an invention covered by the patent in the U.S. or “importing” into the U.S. the invention covered by the patent. See 35 U.S.C. § 154. After a U.S. patent issues, its owner may enforce the patent for generally up to 20 years measured “from the date on which the application for patent was filed in the United States.” Id.

There are three types of patents:

  1. A Utility Patent covers inventions, which operate in a unique manner to produce a useful result.
  2. A Design Patent covers the unique shape or layout of an invention.
  3. A Plant Patent covers asexually or sexually reproducible plants.

If you desire to protect your invention, contact a licensed-Patent Attorney as soon as you can.
Contact Axenfeld Law Group.

What can you patent?

In a nutshell, you can patent just about anything that involves some application of technology.

On the other hand, anything that is nontechnical in nature, such as an artistic expression, is generally not eligible for patent protection. And anything that isn’t an application of technology — such as pure scientific or mathematical principle — is also generally not eligible for patent protection.

According to the U.S. Patent laws, you can patent any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. The word “process” is defined as a “process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” 35 U.S.C. § 100. Interestingly, the terms “machine,” “composition of matter,” and “manufacture” are undefined in the U.S. Patent Statute. Consequently, these terms are subject to interpretation by the U.S. Patent & Trademark Office, and Federal Courts, and fights over their meaning are periodically litigated all the way to the U.S. Supreme Court.

For certain technologies, the demarcation line between what qualifies for patent protection and what does not is sometimes difficult to pinpoint. For instance, the Supreme Court, and the United States Patent and Trademark Office use tests to determine whether computer-implemented inventions are eligible for patent protection. In some cases, computer-implemented inventions are certainly patentable. While in other cases, they are deemed to be an “abstract idea,” and are therefore not eligible for patent protection.

To help you determine whether your invention is eligible for patent protection, please contact a licensed Patent Attorney at Axenfeld Law Group.

How long does it take to obtain a patent?

It depends. Assuming a Patent Examiner at the United States Patent and Trademark Office eventually determines that your patent contains allowable-subject matter, it can take anywhere from nine months to over three years for your patent to issue after your patent application is filed.

If the Art Unit — at the U.S. Patent Office —examining your patent application is busy it may take longer for your patent application to be examined, and hence eventually issue after the examination process. On the other hand, if your patent application is assigned to an Art Unit that is less busy, you may receive a quicker examination. The U.S. Patent and Trademark Office allows you to estimate how long it will take before you receive an examination, by entering the Art Unit and Subclass associated with your patent application or invention.

There are ways to speed up the patent-examination process. For instance, a petition may be filed with the U.S. Patent Office requesting that your patent application is examined out-of-order and ahead of other patent applications.

Contact Axenfeld Law Group to protect your invention.

Should you file a provisional patent application?

There are benefits to filing a Provisional Patent application. The United States is a first-to-file country. Any delay in filing your invention potentially gives someone else the chance to publish or file a patent application directed to the same subject matter before you. In either scenario, your delay may result in the loss of patent rights for your invention.

Therefore, a good way to kick-off the process, is to prepare and file a Provisional-Patent Application. A Provisional-Patent Application establishes a priority date of your invention. A Provisional-Patent Application is not examined by the USPTO, and is maintained in secrecy. Thereafter, additional Provisional-Patent Applications may be filed to sure up a robust disclosure, before eventually filing a non-provisional application, which will be examined by the USPTO for patentability.

Generally, the cost to for legal counsel to prepare and file a Provisional-Patent Application is significantly less than a non-provisional patent application. Another benefit of filing a Provisional-Patent Application is that it allows you to mark your innovative product, material or service as “Patent Pending,” which may aid in marketing, seeking licensees or investors, and any may scare off a copycat competitor.

To learn more about the benefits of filing a Provisional-Patent Application, and whether it makes sense in your case, please contact a Patent Attorney at Axenfeld Law for a free consultation.

What is a “Patent Attorney” or “Patent Lawyer”?

A “patent attorney” or “patent lawyer” is licensed to practice law both before the United States Patent and Trademark Office (“USPTO”), and in at least one state in the U.S. A patent attorney can represent clients before the USPTO, in patent litigation, and counsel clients regarding patent-infringement matters. A patent attorney can also practice law involving non-patent matters in the state(s) in which the patent attorney is admitted to practice law.

The difference between a patent attorney and a general lawyer, is that the latter is only authorized to practice law in the state(s) in which he or she is admitted, but cannot practice patent law before the USPTO. Additionally, an attorney who is not a registered-patent attorney is not authorized to use the designation “Patent Attorney” or “Patent Lawyer.”

An attorney must have the following minimal credentials to be eligible to take the Patent-Bar Exam and be designated a registered “Patent Attorney” or “Patent Lawyer:”

  • a scientific or engineering degree, or other technical credentials satisfactory to the USPTO, and
  • a law degree, and been admitted to practice law in at least one state.

At Axenfeld Law Group, most of our attorneys are registered patent attorneys with either an engineering or scientific background. Because we’re registered-patent attorneys we can represent clients across the United States, or outside of the U.S. before the USPTO. Further, our patent attorneys are also admitted to practice law in Pennsylvania, New York, the District of Columbia, New Jersey, and Georgia.

Is a prototype necessary before you apply for a patent?

No. A working model of your invention is typically not required before you apply for a U.S. patent. The United States Patent and Trademark Office (“USPTO”) does not generally require inventors to submit a physical prototype when filing their patent application. So there’s no need to delay filing your patent application, because you mistakenly believe it is necessary to build and test a working model of your invention.

Even after your patent application is filed, it is extremely rare for the USPTO to ask for working model. That is, unless your invention involves perpetual motion, the USPTO will ordinarily not require you to demonstrate operability of your invention. However, the USPTO may require an inventor to provide a working model, or other physical exhibit during the patent examination process; again although a rare event.

On the other hand, in some circumstances, models and exhibits may be voluntarily presented to a Patent Examiner to the Examiner better understand the nature of your invention during the patent-examination process. In this case, the model is demonstrated during the interview, but is not left with the USPTO or the Examiner.
After your patent application is filed, it may be desirable to build and test a prototype of your invention. However, if you decide to work with a third party to help you build the prototype, you should use caution, and make sure that proper-written agreements are put in place beforehand to ensure that confidentiality is preserved, and that any new developments or inventions made by the third party are assigned to you, including the right for you to file a patent application to protect those new inventions. Otherwise, the third party may own these new developments or inventions.

At Axenfeld Law Group, we can help you put in place agreements, which protect your intellectual-property rights when dealing with a third party hired to build your prototype.

How much does it cost to file a patent application?

The biggest costs associated with preparing and filing a patent application in the United States, aren’t the government filing fee, search fees, or draftsman charges. No, unfortunately the attorney’s fees represent the biggest portion of fees associated with preparing and filing a patent application in the U.S., because of the amount of time and legal acumen it takes to prepare a high-quality-patent application in the U.S.

At Axenfeld Law Group, we pride ourselves in taking the guess work out of the costs of preparing and filing your patent application at the outset of our engagement. Axenfeld Law Group offers fixed-billing rates (i.e., flat rates) for preparing and filing patent applications. The flat rates includes all time on the matter including emails, calls, and meetings. There are no hidden fees, and no extra charges for communicating with us regarding the filing of your patent application.

So, please contact us, and we’ll provide you with a no obligation flat-fee estimate to prepare and file your patent application(s) in the United States and Internationally.

Below are ballpark estimates associated with our attorneys’ legal fees for preparing and filing a U.S. Patent Application in the U.S.

Low Complexity Invention Medium-Complexity Inventio High-Complexity Invention
Patent Search & Patentability Opinion ~$1.6K to ~$2K (including patent search fees) Patent Search & Patentability Opinion ~$2.5K to ~3.5K (including patent search fees) Patent Search & Patentability Opinion ~$3.5K to >~$5K (including patent search fees)
Preparing and Filing a non-provisional utility patent application (attorney fees only)
~ $6K and ~ $8K
Preparing and Filing a non-provisional utility patent application (attorney fees only)
~ $8K and ~ $11K
Preparing and Filing a non-provisional utility patent application (attorney fees only)
~ $11K and ~ >$14K
Preparing and Filing a Provisional application:
Minimum $500 and up (attorney fees only)
Preparing and Filing a Provisional application:
Minimum $2K and up (attorney fees only)
Preparing and Filing a Provisional application:
Minimum $4K and up (attorney fees only)
Preparing and Filing a Design Application including all attorney fees, filing fees, and disbursements
~ $2.5K
Preparing and Filing a Design Application including all attorney fees, filing fees, and disbursements
~ $3K
Preparing and Filing a Design Application including all attorney fees, filing fees, and disbursements
~ $4K