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When to File a Patent?

When is the best time to file a patent – before or after you form your business?

Knowing the right time to file a patent can help you protect your ideas or invention. A patent gives the holder (for a limited time) the right to exclude others from making, using, offering to sell, selling, or importing into the U.S. the subject matter that is within the scope of protection granted by the patent, according to the U.S. Patent and Trademark Office.

Before you file though, you need to consider your invention's usefulness, its originality, what type of patent category it falls under, and how you want to protect it. Patents may be filed for any "new and useful process, machine, manufacture (articles that are made), or composition of matter (chemical compositions or compounds), or any new and useful improvement."

If you are contemplating obtaining a patent, consider the following:

    Is your invention patentable? The first thing you need to determine is if your invention is even eligible for a patent. According to, your invention needs to be the first of its kind. It can't be patented if "the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent."

    Run a search. To help determine if your invention is unique, you should do a thorough search of previous public disclosures. This search is not required by law, but is strongly recommended by the USPTO. In addition, the USPTO states that your subject matter should be useful and have a purpose.

    Consider different patent types. When considering a patent, you need to know about three different categories to which you can apply: utility, design and plant. A utility patent protects the way an invention is used and works. A design patent protects the way an invention looks. A plant patent gives credit to an inventor who has "invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state," says the UPPTO.

    File the right application. To obtain a patent, you will need to file an application with the USPTO. Before filing, you should understand the difference between the two types of patent applications (non-provisional and provisional). A non-provisional patent application includes a written document outlining the invention's description and the inventor's claims, a drawing (if applicable) and necessary fees. A provisional application includes a lower cost first-time filing fee and doesn't require claims or a description. A provisional patent application provides the applicant with a Patent Pending status, with an option to file a non-provisional application within 12 months. According to the USPTO, the majority of applications filed in the U.S. are provisional utility applications.

Obtaining a patent can be the start of something great, but you need to ensure that you are taking knowledgeable steps when filing a patent application. According to the USPTO, "a patent application is a complex legal document, best prepared by one trained to prepare such documents." A list of registered patent attorneys and agents can be found here.

After filing a patent, forming a business to develop your invention may be the next step. Contact MaxFilings to learn more about moving forward.

Also, be sure the visit our incorporation blog and knowledge center to find a plethora of information that will help you understand the best business options for you.