How hard is it to get a patent?

How hard is it to get a utility patent?

Before delving into how hard it is to get a utility patent, we should define that we mean by easy. If easy means getting a patent without any rejections, then only 11% of utility nonprovisional patent applications get allowed without any rejections according to this Yale statistical study. So getting a utility patent will not be easy in most cases. It may also be easy to get an independent claim allowed with such a high number of limitations or claim elements that the patent will have little to no value in the commercial world.

The vast majority of utility patent applications will encounter a hard path to success. Utility patent filers should not be discouraged. Instead, utility patent applicants should be well-informed and realistic on the long and expensive process of obtaining a utility patent. Reasonable expectations combined with a smart patent strategy can lead to successful grant of a utility patent that will provide your business with real value.

Why are utility patents difficult to obtain?

Several factors affect the difficulty level of obtaining utility patents. The particular area of technology will play a major role. For example, utility patent applications for software, mobile apps, and business methods will generally encounter a higher rate of rejection, and a greater probability of multiple rejections.

Another key factor in the high rate of rejections has to do with the way patent examiners easily reject claims without finding very similar prior art references. You may wonder, “How do examiners get away this?” The answer is a type of rejection known as obviousness, where examiners typically combine multiple prior art references to arrive at the claimed invention. There are strategies for countering and overcoming obviousness rejections, but a great deal of work and patience will be required.

Another factor can be inconsistencies between the applicant and the examiner in how each side interprets key claim terms – i.e., the applicant understands a particular claim term to have a specific meaning while the examiner applies a broader interpretation.

How claim scope leads to claim rejections and allowances

Applicants naturally want utility patents with broader claims that have real teeth – i.e., claims that will cover competitors’ copycat products. This battle for broader claim scope will typically to lead to a tug-of-war with the examiner. It’s a give-and-take process where the applicant makes concessions by adding claim elements to get past each successive prior art rejection. If they’re being fair, examiners may allow amended claims as additional claim elements narrow the scope to the point where the examiner feels that the claim has reached the requisite level of both novelty and nonobviousness.

If all you want is a trophy patent, you can greatly increase your chances of allowance by filing claims with a high number of limitations. This decreases the claim scope and increases the probability of allowance. For example, an independent claim with 20 paragraphs, each containing at least two claim elements, might have a good chance of allowance. But, would such a claim have any value in the real world if others can easily design around it?

Will a patent search of prior art help?

A patentability search can help to identify prior art patents that are similar or closely related to your invention. Novelty searches, however, are limited in that it is very possible to miss certain prior art references. Even if the closest prior art references are found in a prior art search, there is no predicting how the examiner will apply the obviousness rejection to reject claims which seem to be very different from the prior art.

How easy is it to get a design patent?

Design patent applications have a high probability of allowance at over 84%:

How hard is it to get a design patent?
Design Allowance Rate – Fiscal Year 2020

The high design allowance rate suggests that it may be worthwhile to file design applications even if you are unsure of the novelty of a particular design.

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Frenda Williams
Frenda Williams
2023-02-21
I have had the pleasure of working with Vic and his team at Innovation Capital Law Group on Trademark creation and contracts. As a solo and non-tech founder, the assistance, guidance and recommendations from Vic and his team have been INVALUABLE. And, with the knowledge that I have a Solid, well versed and caring legal team I can turn to, I have the confidence I need to navigate the intricacies of the tech industry as a solo founder. With that being said, If you’re a startup and you’re looking for a legal team that speaks your language, knows the industry and makes you feel like family…. Innovation Capital Law Group is a Perfect fit for you, your company and your team. Five out of Five Stars… don’t let their brilliance blind you 😁
Shiwei Liu
Shiwei Liu
2023-02-20
Excellent service and quick response. Lots of informative documents on its website.
Chang Chien Michael
Chang Chien Michael
2023-02-20
I have worked with iCap for more than 7 years. I am very glad with his professional knowledge that 7 utility patents were granted by USPTO. Vic and his team are very efficient and knowledgeable. Every time he can transcribe my design idea perfectly in two weeks and file it with no rejection from USPTO. The other service including the granted patent following up is always in time to remind me to take actions. That is why I still stick on iCap as my first priority when I want to file a US patent.
Mats Johansson
Mats Johansson
2023-02-20
We have been happy client for 10+ years. Awesome Patent Law Firm!
Hanson Chang
Hanson Chang
2023-02-16
Glad to write a review for Innovation Capital Law Group. We previously worked with a big law firm (2200 employees) on our patents, and decided to shift over to Innovation Capital. It was a great decision, this team got our patents done faster, more effectively, at a lower cost, and with broader claims. Win all around
Genevieve Springer
Genevieve Springer
2022-09-09
Clear, discernible tools and strategies couched within a business conceived from a genuine interest in doing right by founders.
InPlay Inc
InPlay Inc
2022-06-30
Vic and his team have been providing us with the best patent application experiences we could ever have in our entire career life! Their professionalism and technical knowledge have really saved us a lot of communication effort and time on the applications. Definitely highly recommend if anyone is looking for help with IP protection for their business.
Meg Crowley
Meg Crowley
2022-03-05
After working with Vic and his team at Innovation Capital Law Group, our organization is confident our trademarks were solid and protected. Thank you team.
Andy Dong
Andy Dong
2022-02-28
I have been using Innovation Capital Law Group for a few years and continue to use them. They have provided an excellent services on our legal issues including intellectual properties and patents . They are very responsive, easy to work with and very competent . I highly recommend them.

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