How to Patent an Idea: What You Can Patent and the Steps to File

You can't patent an idea by itself. A U.S. patent covers an invention you can describe in enough detail that someone skilled in the field could make and use it, and the invention has to be new and not obvious. From there you search, file the right application, get through examination and pay the fees that keep the patent alive.

This article is general legal information, not legal advice. Laws vary by state and situation, and reading it does not create an attorney-client relationship. For advice about your case, talk to a licensed attorney.

Key takeaways

• An idea or suggestion alone can't be patented; the application must explain how to make and use the invention (35 U.S.C. 112(a)).
• The U.S. excuses your own disclosure if you file within a year; most other countries, Europe included, don't.
• With a provisional first, USPTO fees for a utility patent total $723, $1,376 or $3,615 through grant, by entity size.
• A trade secret lasts while it stays secret but can't stop reverse engineering.

Can you patent an idea? Check what you have first

What you have	Can it be patented?	Kind	Statute
An idea for a product, with no worked-out way to make it	No; the application must explain how to make and use it	None yet	35 U.S.C. 112(a)
A working process, machine, device or composition of matter	Yes, if it's new, useful and not obvious	Utility	35 U.S.C. 101 to 103
A new ornamental design for a manufactured product	Yes, if it's new, original, ornamental and not obvious	Design	35 U.S.C. 103, 171
A new, distinct plant variety you've reproduced asexually	Yes, except tuber-propagated plants and plants found in an uncultivated state	Plant	35 U.S.C. 161
Software	Sometimes; an abstract idea run on an ordinary computer doesn't qualify	Utility	35 U.S.C. 101; Alice Corp. v. CLS Bank (2014)

A design patent lasts 15 years from grant (35 U.S.C. 173), and design and plant patents carry no maintenance fees (35 U.S.C. 41(b)(3)). For a brand name, logo or piece of writing, our comparison of trademark, copyright and patent protection shows which one fits.

The four tests every utility claim has to pass

The examiner checks each claim, the numbered sentences that mark out what a patent covers, against four requirements.

Eligible subject matter

Section 101 covers new and useful processes, machines, manufactures and compositions of matter, minus the exceptions the Supreme Court recognizes for laws of nature, natural phenomena and abstract ideas. In Alice Corp. v. CLS Bank (2014), the claims used a computer as a go-between so that neither side of a financial exchange was exposed if the other failed to pay. The Court called that an abstract idea and held that running it on a generic computer didn't make it eligible. The USPTO notes that some business methods can still be patented.

Novelty

Section 102(a) rules out a patent on anything already patented, described in a printed publication, in public use, on sale or otherwise available to the public before your effective filing date, or described in someone else's earlier-filed U.S. patent or published application. "On sale" reaches private deals. Helsinn Healthcare gave another company, which had to keep Helsinn's information confidential, the right to sell a dose of its anti-nausea drug palonosetron nearly two years before filing its January 2003 provisional. In 2019 the Supreme Court held that such a sale still counts, so the patent was invalid. Count your deadlines from the first offer or sale, too.

Nonobviousness

Under section 103, an invention fails if its differences from earlier work would have been obvious to a person of ordinary skill in the field before the filing date. In KSR International v. Teleflex (2007), the claim covered an adjustable gas pedal with an electronic sensor at a fixed pivot point. Earlier patents showed an adjustable pedal with a fixed pivot and, separately, sensors made to attach to pedals. The Court held that mounting an available sensor on that pivot was an obvious design step, since combining familiar parts by known methods is likely obvious when the result is predictable.

An enabling description

Section 112(a) requires a description of the invention and of how to make and use it, complete enough for a skilled person to do both, plus the inventor's best way of carrying it out. In Amgen v. Sanofi (2023), Amgen claimed every antibody that binds certain spots on the protein PCSK9 and blocks it from binding LDL cholesterol receptors, but gave sequences for only 26 and trial-and-error methods for the rest. The Court held that a patent claiming a whole class must enable the whole class. A bare idea fails this test first, because there's nothing yet to enable.

## Search first, then pick the application

Start with the USPTO's Patent Public Search, which, from Nov. 7, 2026, requires signing in with a USPTO account. Section 102 counts anything public, so also check products, catalogs, papers and videos.

Then choose utility (how it works), design (how it looks) or plant. A provisional is the cheaper first step for utility and plant inventions: it needs a description and any drawings but no claims, isn't examined and lapses after 12 months (35 U.S.C. 111(b)). A nonprovisional filed within that year gets the provisional's date for whatever the provisional fully described (35 U.S.C. 119(e)(1)). Design applications can't claim one (35 U.S.C. 172). The provisional fee is $325, $130 for a small entity or $65 for a micro entity.

A dated path from a trade show to a granted utility patent

Say you demonstrate a working prototype at a trade show on Wednesday, March 10, 2027, before filing anything, and then file a provisional on Monday, June 7, 2027.

Date	What happens	Rule
Wed., Mar. 10, 2027	The demonstration: excused in the U.S. if you file within a year, but generally prior art in Europe from that day	35 U.S.C. 102(a)(1), (b)(1)(A); EPC arts. 54, 55
Mon., June 7, 2027	Provisional filed; claims it fully supports take this effective filing date	35 U.S.C. 100(i), 119(e)(1)
Fri., Mar. 10, 2028	One year after the show; any claim with a later effective filing date faces the show as prior art	35 U.S.C. 102(b)(1)
Wed., June 7, 2028	Last day to file the nonprovisional and keep the provisional's date without a petition	35 U.S.C. 119(e)(1)
Mon., Aug. 7, 2028	Last day to file it with a petition showing the delay was unintentional ($2,260, $904 or $452 fee)	35 U.S.C. 119(e)(1); 37 CFR 1.78(b), 1.17(m)(3)
3 months from the notice of allowance	Issue fee due; this period can't be extended	37 CFR 1.311(a)
3.5, 7.5 and 11.5 years after grant	Maintenance fees due	37 CFR 1.362(d), (e)
June 7, 2048	Term ends if all fees are paid: 20 years after the nonprovisional filing, plus any days added for USPTO delay	35 U.S.C. 154(a)(2), (3), (b)

A feature you describe for the first time in the nonprovisional dates only from June 7, 2028, more than a year after the show, so the examiner can cite the show against claims to that feature.

Europe has no general grace period. Under the European Patent Convention, an invention isn't new if it was made available to the public in any way before the filing date (Article 54). Article 55 excuses only two kinds of disclosure: one caused by evident abuse, or a display at an official or officially recognized international exhibition. Either way, it must fall within six months before the European application is actually filed, and claiming the provisional's earlier date doesn't stretch that (Enlarged Board of Appeal decisions G 3/98 and G 2/99). For the exhibition exception, you also have to say so when you file and supply a certificate (Article 55(2)). With a March 10, 2027 show, that means actually filing in Europe by Friday, Sept. 10, 2027, and it helps only if the show was one of those exhibitions. Otherwise the demonstration is already prior art there. The USPTO says most foreign countries bar a patent once the invention has been published before filing, so if foreign sales matter, file before you show.

The examiner's office actions list any rejections, and each sets a reply deadline, usually extendable to six months for a fee that starts at $235, $94 or $47 for one month (35 U.S.C. 133; 37 CFR 1.134, 1.136(a)). Once a claim has been rejected twice, you can appeal to the Patent Trial and Appeal Board (35 U.S.C. 134(a)).

Each maintenance fee can be paid without a surcharge in the six months before it's due, or with one in the six months after; then the patent expires (37 CFR 1.362). For a patent granted on Tuesday, Sept. 17, 2030 (an assumed date), the surcharge-free windows close on Friday, Mar. 17, 2034; Wednesday, Mar. 17, 2038; and Monday, Mar. 17, 2042.

What the USPTO charges at each entity size

Small entities (independent inventors, nonprofits and small businesses) pay 60% less on most fees, and micro entities 80% less (35 U.S.C. 41(h)(1) and its notes). Micro status adds an income cap and a limit on earlier filings (35 U.S.C. 123(a)); the USPTO posts the current income figure. Amounts are from the schedule in effect since Jan. 19, 2025 (last revised Nov. 1, 2026).

Utility patent fee (37 CFR)	Standard	Small entity	Micro entity
Provisional filing fee (1.16(d))	$325	$130	$65
Basic filing fee (1.16(a))	$350	$70 online, $140 on paper	$70
Search fee (1.16(k))	$770	$308	$154
Examination fee (1.16(o))	$880	$352	$176
Issue fee (1.18(a))	$1,290	$516	$258
Total through grant	$3,615	$1,376	$723
Maintenance fee at 3.5 years (1.20(e))	$2,150	$860	$430
Maintenance fee at 7.5 years (1.20(f))	$4,040	$1,616	$808
Maintenance fee at 11.5 years (1.20(g))	$8,280	$3,312	$1,656
Total for the full term	$18,085	$7,164	$3,617

The totals assume no more than three independent claims and 20 in all; each extra costs more (1.16(h), (i)). A paper utility filing adds $400 ($200 for small and micro entities), and text not in DOCX format adds $430, $172 or $86; filing DOCX through the USPTO's Patent Center avoids both. Through grant, a design patent costs $2,600, $1,040 or $520, and a plant patent $2,355, $942 or $471. Recheck the schedule before you pay.

## Trade secrets, or going to market without a patent

Under the Defend Trade Secrets Act, a trade secret is information, such as a formula, process or method, that's worth money because others don't know it and can't readily work it out by proper means, and that its owner takes reasonable steps to keep secret (18 U.S.C. 1839(3)). The definition has no end date. Theft, bribery and breaking a duty of secrecy are improper means of getting it; reverse engineering and independent derivation aren't (1839(6)). That suits a recipe or production process kept in-house, and fits poorly with a gadget any buyer can take apart. A patent publishes how the invention works, so the same detail can't be both.

You can also simply get to market. Without a patent, you have no right to stop a competitor from making and selling the same thing (35 U.S.C. 154(a)(1)). Your public sales do become prior art that generally keeps later filers from patenting it, but they also start your one-year U.S. clock and can end your chances in Europe and many other countries.

When a patent attorney or agent is worth the fee

The USPTO recommends a registered patent attorney or agent for every applicant. The fee pays off most when:

• you're about to pitch, exhibit, sell or publish, or may want patents abroad;
• it's software, a diagnostic test or a business method, where Alice can decide the outcome;
• you want claims covering versions you haven't built, the breadth Amgen lost;
• an examiner has rejected your claims as obvious, or you're weighing an appeal;
• you've already shown or sold it and need to know if the grace year still covers you.

The USPTO's Patent Pro Bono Program matches volunteer patent practitioners with inventors and small businesses who meet its financial criteria. If you file on your own, its Pro Se Assistance Center (1-866-767-3848) can point you to resources, though USPTO staff can't give legal advice. Before calling anyone, compare the intellectual property practices in our directory and ask each for a quote on the stage you need.

Frequently asked questions

Does a "poor man's patent" (mailing a description to yourself) protect an invention?

No. A sealed envelope or dated notebook gives you no filing date; what counts is the date the USPTO receives your application (35 U.S.C. 100(i), 111(a)(4)). Dated records can still help if someone else files on an invention they took from you, because an applicant can petition for a derivation proceeding (35 U.S.C. 135).

Do you need a prototype to apply for a patent?

No. The USPTO generally doesn't take models into the application file unless it asks for one (37 CFR 1.91), so the written description and drawings carry the load under 35 U.S.C. 112(a). The invention still has to work as described, because section 101 requires it to be useful. A prototype can help you write a fuller description.

How long does it take to get a patent?

There's no fixed timeline. The USPTO's Patents Dashboard posts current average waits. If the USPTO misses certain deadlines, such as 14 months to a first action or three years to issue, the patent's term grows by a day for each day of delay, minus delays you cause (35 U.S.C. 154(b)).

Will a U.S. patent stop copies made in other countries?

Only once they're brought into the U.S. A U.S. patent covers making, using, offering, selling and importing the invention in the United States (35 U.S.C. 154(a)(1)), and the USPTO notes that it has no effect abroad. To stop sales elsewhere, you need a patent in each country, filed under its rules.