If you’ve built something new, whether it’s a product, a tool, or a process, you’ve probably wondered whether you can patent it. It’s one of the most common questions I get from founders, and the answer is more straightforward than most people expect.
Here’s how it actually works. (If you prefer video, I cover this topic in Patents Explained in 7 Minutes.)
What is a Patent?
A patent is a type of legal protection for inventions and designs. When you hold a patent, no one else can make, use, sell, or import your invention without your permission. If they do, you have the legal right to stop them.
Think of it this way. You’ve invested time, money, and effort into creating something new. A patent gives you a 20-year head start on anyone who might try to copy it.
That’s a meaningful competitive advantage, especially for startups where your product is your business.
The Three Types of Patents
There are three kinds of patents available in the United States, and they each protect different things.
1. Utility Patents
This is the most common type. A utility patent protects how an invention works, including its function, its process, or what it produces.
If you’ve invented a new medical device, a software algorithm that solves a specific problem, or a manufacturing process that’s more efficient than what’s out there, a utility patent is probably what you’re looking for.
Utility patents last 20 years from the date you file.
2. Design Patents
A design patent protects the way something looks. That includes its shape, surface ornamentation, or overall visual appearance.
A classic example: the unique shape of a Coca-Cola bottle. The bottle doesn’t work differently than any other bottle, but a design patent protects its distinct look.
If your product’s visual design is what sets it apart in the market, a design patent is worth considering. These last 15 years from the date they’re granted.
3. Plant Patents
These protect new varieties of plants that someone has invented or discovered and asexually reproduced. This one doesn’t come up much in the startup world, but it’s important in agriculture and biotech.
Plant patents also last 20 years from the filing date.
What Makes Something Patentable?
The USPTO (United States Patent and Trademark Office) looks at three main requirements when deciding whether to grant a patent. Your invention has to clear all three.
It Has to Be Useful
Your invention needs to do something. More specifically, it needs to have a practical purpose. Commercial success doesn’t matter, and neither does mass-market appeal. The invention just has to work the way you say it does.
This is usually the easiest requirement to meet. If your invention solves a real problem, you’re probably fine here.
It Has to Be Novel
Your invention can’t already exist. If someone else has already patented it, published it, sold it, or made it publicly available, it’s not novel and it can’t be patented.
This is why a thorough patent search matters before you invest in a full application. You want to know what’s already out there so you’re not spending money on something that won’t get approved.
It Can’t Be Obvious
Even if your invention is new, it still has to be a meaningful step forward. If someone with ordinary skill in your field would look at what already exists and say, “well, the next logical step would be to do this,” then it’s considered obvious, and the patent office will likely reject it.
This is where things can get nuanced. What counts as “obvious” depends on the field, the existing technology, and how the examiner evaluates it. I see this requirement trip up founders more than any other. And honestly, it sometimes comes down to which examiner is assigned to your application.
What Can’t Be Patented?
There are a few categories of things that the patent office won’t grant protection for, no matter how creative or useful they are:
- Laws of nature. You can’t patent gravity, thermodynamics, or any naturally occurring phenomenon.
- Abstract ideas. A general concept, business method, or mental process on its own isn’t patentable. This is a big area of debate right now, especially around software and AI.
- Mathematical formulas. The formula itself can’t be patented, though a specific application of that formula in a machine or process might be.
- Things found in nature. A mineral, a plant growing in the wild, or a naturally occurring gene can’t be patented as-is. But if you’ve modified it or created a new application for it, that could be a different story.
The key word here is application. You can’t patent an idea in the abstract, but you can often patent a specific, practical application of that idea.
The Patent Application Process
Understanding what’s patentable is the first step. Here’s a quick overview of what the process actually looks like from start to finish.
Step 1: Search Existing Patents
Before you file anything, you want to know what’s already out there. A patent search helps you understand the landscape and identify potential obstacles. This saves you time and money if it turns out something similar already exists. I put together a free patent search tutorial that walks you through exactly how to do this yourself.
Step 2: Consider a Provisional Patent Application
A provisional patent application gives you a filing date and “patent pending” status for 12 months, without the full cost of a non-provisional application. It’s a smart move if you’re still developing your product or testing the market.
If you hire a patent attorney, the cost for a provisional application typically runs less than $5,000. If you want to file it yourself, the USPTO filing fee can be as low as $65 for micro entities or $130 for small entities. I actually have a step-by-step video that walks you through how to file a provisional patent application on your own.
Step 3: File a Non-Provisional Patent Application
This is the full application. It includes detailed claims that define exactly what your patent protects, along with drawings and a thorough description of how the invention works.
If you hire a patent attorney, the cost for a non-provisional utility patent application usually runs $10,000+. I put together a full breakdown of patent costs if you want to see what drives those numbers up or down.
Step 4: Patent Examination
After you file, a patent examiner at the USPTO reviews your application. This process typically takes 18 to 24 months, sometimes longer. The examiner will evaluate whether your invention meets the novelty, usefulness, and non-obviousness requirements.
It’s common for the examiner to come back with objections or rejections, called “office actions.” This doesn’t mean your application is dead. Most applications go through at least one round of back-and-forth before being approved, and often several rounds.
If you hire a patent attorney to respond on your behalf, the cost for each response can be a few hundred to a few thousand dollars depending on the action needed and arguments being presented.
Step 5: Patent Granted
Once your application clears examination, the USPTO grants your patent and you have enforceable rights. For utility patents, that protection lasts 20 years from your filing date, as long as you pay the required maintenance fees along the way.
FAQs
“Can I patent my app or software?”
Potentially, yes. Software patents are absolutely possible, but they’ve gotten more complex since the Supreme Court’s Alice decision in 2014. The key is framing the invention around what technical problem it solves and how it solves it, not just describing the abstract concept behind it.
If your software does something genuinely new from a technical standpoint, there’s a good chance it’s patentable. I break down what actually gets approved in this video.
“What if I’ve already told people about my invention?”
In the U.S., you have a 12-month grace period after your first public disclosure to file a patent application. After that window closes, you lose your right to patent it.
That 12-month clock starts ticking the moment you publicly describe, demonstrate, sell, or offer to sell your invention. If you’re getting close to that deadline, it’s worth having a conversation sooner rather than later.
“Is a patent worth the investment for a startup?”
It depends on your business. If your competitive advantage is your technology, and your product is what makes your company valuable, then patent protection is almost always worth considering.
Patents matter for fundraising too. Investors want to know that your IP is protected. It’s one of the first things that comes up during due diligence.
That said, not every invention needs a patent. If your competitive advantage comes from speed to market, brand recognition, or a business model that’s hard to replicate, you might not need one. At least not right away. I talk more about who actually needs a patent and who doesn’t in a separate video.
Why Patents Matter for Your Business
A patent isn’t just a legal document sitting in a filing cabinet. It’s a business asset.
Licensing it generates revenue. It blocks competitors from copying your product. And it strengthens your position when raising capital or negotiating partnerships. And if you ever sell your company, your patent portfolio is part of what buyers are paying for.
For startups especially, a strong IP position signals to the market that you’re serious and that your technology is worth protecting.
Next Steps
If you’ve got an invention and you’re wondering whether it’s patentable, the best next step is a conversation. Every situation is a little different, and the specifics matter.
I’d be happy to help you figure out whether patent protection makes sense for your business and what the process would look like. Here’s a link to my calendar. Feel free to grab a time that’s convenient for you.
