If you’ve developed a unique product or a design, you should take steps to protect it. Filing for a patent or trademark from the United States Patent and Trademark Office (USPTO) is often the best course of action.

In this article, we’ll cover the differences between patents and trademarks and explain the steps you need to follow to secure these forms of protection.

What is a patent and what is a trademark?

Patents and trademarks are both types of intellectual property. Each version grants a person or entity the right to make, use, sell, or benefit from what it covers for a set period of time.

Here is the difference:

• A patent protects a physical item, such as a machine, a chemical compound, a final product, or a process to produce a physical item.
• A trademark protects signs, designs, or forms of expression. Similarly, a service mark protects the same set of items for services.

Is my intellectual property is eligible for a patent or trademark?

The USPTO offers some insights into what can be patented. Their terms state that material or process must:

• Be useful in terms of having a purpose and operativeness.
• Be complete and not an idea or a suggestion for improvement.
• Not pertain to nuclear material or atomic energy in an atomic weapon.
• Not cover laws of nature, physical phenomena, or abstract ideas.
• Be sufficiently different from what already exists in the market or has been described in a printed publication.

You can use this search engine to determine whether your item or process has already been patented, which would likely make it ineligible for future patents. You should also search catalogs, trade journals, conference presentations, and other industry publications to ensure another individual or organization hasn’t published your invention.

The search engine is difficult to work with. You may consider working with an online patent search service, such as IP.com or Cardinal Intellectual Property, to help you with this step. Instead, you can visit the USPTO’s Public Search Facility in Alexandria, VA, to work with trained staff to access public patent and trademark information. The USPTO also offers this resource to help you with your search.

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Trademarks and service marks have their own set of qualifications:

• The appearance of the mark must be materially different from registered marks.
• The meaning of the mark must differ from other marks that are registered.
• Phrases must differ in sound from marks already registered, even if the phrases are spelled differently.
• The mark must not include any design elements that other people or entities have registered.

However, conflicts only occur within a prescribed set of goods or services. Marks can sometimes be approved if they have similarities in meaning or style but apply to very different sets of products. You can learn more about these conflicts through this link.

The USPTO offers this search engine to determine whether another person or entity has already claimed the rights to the wording or design you intend to use.

I believe my item is eligible for a patent. How do I go about it?

Before getting started, consider working with a patent attorney. A patent attorney can help you take on the application process, which can be long, complex, and confusing for new filers. It’s easy to make missteps, and doing so can result in delays and rejections of your application.

The best patent attorneys have two important characteristics:

1. They have a strong track record in writing patents or trademarks that are issued.
2. They have litigation experience to defend your intellectual property.

If you can’t cover the costs of a patent attorney, think about using one of the following two options rather than filing your application alone:

1. The USPTO’s Patent Pro Bono Program, which provides free legal assistance to under-resourced inventors.
2. The USPTO’s Law School Clinic Certification Program, which pairs inventors with law school students who gain experience drafting and filing trademark and patent applications on behalf of clients.

You can also contact the USPTO’s Inventor Assistance Center for help with specific inquiries.

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After hiring an attorney or securing application support, take these steps:

1. Read the list of patent options and determine which you’ll need. You can choose a design patent, a plant patent, or a utility patent (the most popular option).
2. File a provisional patent application, which will afford you some protection if another person or entity tries to claim your idea. A provisional patent will grant you one year of patent-pending status. You can extend it by filing a formal patent application within that timeframe.
3. Complete the eFiler process to prepare for filing your formal application.
4. Gather the documents you’ll need to complete your formal application. You can find a full list of requirements here:
   • Design patent application guide
   • Plant patent application guide
   • Utility patent application guide
5. Complete your application and submit it to the USPTO with your filing fee. Be sure to have a patent attorney review your application before submission, even if you plan to file it independently. You can also refer your questions about the application process to USPTO’s Application Assistance Unit.
   Important note: You won’t be able to add anything to your application after it’s submitted, so it’s important to review it thoroughly.
6. Work with the patent examiner assigned to your case until your application is approved or rejected. You may receive notices of deficiencies in your submission during the process. You can correct these and remit your application with an additional fee within a specified time period. However, if you fail to submit corrections, your application will be rejected, and you’ll need to start the process from the beginning.
7. Obtain your notice of allowance. Then, pay the required issue and publication fees. You’ll receive your patent grant shortly thereafter. You can also order certified documents with the USPTO ribbon if you wish.

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If you need international protection, you’ll need to take additional steps. You can learn about the process through the International Patent Legal Administration (IPLA).

Are there fees to obtain a patent?

Yes, there is a filing fee, an issue fee, and a maintenance fee, and other fees may apply. You can find the current fee schedule through this link.

How long will it take to receive a patent?

This dashboard, provided by the USPTO, shows data on the typical processing times of applications. In most cases, the process takes years to complete. Most utility patents are processed in two to five years. It can take one to two years to receive a response from the USPTO on design patents.

The long wait is due, in part, to the large number of applications the USPTO receives but also because there are many steps to reviewing and examining applications. You can find the USPTO’s process through this link.

It’s quite common for patent applications to be rejected. If you receive a rejection, you can make revisions and refile your application. If your application has been rejected more than once, you can file an appeal with the Patent Trial and Appeal Board.

How long will be patent stay in force?

Most are valid for 20 years after the filing date.

I want to obtain a trademark. What do I need to do?

A patent attorney is important here, too. While the USPTO doesn’t require you to work with one, a patent attorney can help you navigate the application process and avoid the missteps that can result in delays and rejections.

Would you like to connect with a patent attorney? Look into a service like the one Northwest offers. Their attorneys will review your trademark, offer advice, and prepare and file your application for a flat fee of about $250 plus USPTO filing fees. You can check out this service here.

You can also look into Trademark Engine, which will help you check if your trademark is already being used and work through the registration process in about seven minutes. This service (with rave reviews!) starts at $99 plus USPTO filing fees.

And, again, you might also consider these programs if the costs of a patent attorney are too great to bear:

1. The USPTO’s Patent Pro Bono Program, which provides free legal assistance to under-resourced inventors.
2. The USPTO’s Law School Clinic Certification Program, which pairs inventors with law school students who gain experience drafting and filing trademark and patent applications on behalf of clients.

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Keep in mind that the USPTO’s Inventor Assistance Center can also help with specific inquiries.

Then, after hiring an attorney or securing application support, you can take the following steps:

1. Determine whether you need a standard character mark, a stylized design mark, or a sound mark. This USPTO resource can help you decide which option best suits your needs.
2. Identify how you’ll use your mark by listing the products or services to which it will apply. Another USPTO resource can help you with this step.
3. Determine the basis for filing you will use. Your options include use in commerce, intent to use, foreign registration, and foreign application. This article can help you explore the four options.
4. Set up a USPTO.gov account to submit your application through this link.
5. File your trademark application through the TEAS system and pay the upfront fees that are required. Be sure to have a patent attorney review your application before submission, even if you plan to file it independently. You can refer your questions about the application process to USPTO’s Application Assistance Unit.
6. Work with your assigned USPTO examiner. This person will determine whether your application complies with relevant rules and statutes and is in good order.
7. Receive an approval or denial of your application.
8. If the USPTO approves your application, it will publish your mark in its Official Gazette and allow 30 days for parties to oppose it. If someone challenges the mark, the Trademark Trial and Appeal Board will review the claim and make a decision. But if it goes unchallenged—or if challenges are unsuccessful—the USPTO will register your mark and you’ll receive a certificate of registration.

Are there fees to obtain a trademark?

Yes, you can find the current fee schedule through this link.

How long will it take to receive a trademark?

In most cases, the process takes 12-18 months.

How long will be trademark stay in force?

Trademarks can be in force forever, provided you renew them every ten years.

What’s next?

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