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Patent Process

Can You Patent an Idea Without a Prototype?

By October 7, 2020
Person drafting a prototype for an idea patent

If you’re working on patenting an idea, a common question that comes up is whether or not you need a prototype when filing.

Can You Patent an Idea Without a Prototype?

You can file a patent application to the Patent and Trademark Office for your idea without a prototype. However, you do need to know enough detail about your idea to accurately describe it in the application. Prototypes can be very helpful in understanding and fleshing out your idea, so that you can describe it with sufficient detail for your application.

Patent Application Standards

You can file a patent application without a prototype.  Wondering how to patent an idea? It’s important to know what the standards are for patent applications. All patent applications must include a written description of the invention.Prototype draft

The written description for your patent must meet the requirements identified in 35 U.S.C. 112. This statute requires a clear and concise description of the invention and the manner and process of making and using it. Essentially, the written description should provide enough detail that someone with ordinary skill in the patent’s field would be able to make and use the invention.

Sufficient Details About Your Idea

Because of the patent application’s standards for a patent’s written description, it is important that you have sufficient details about your idea and the resulting invention. You need to be able to understand how all of the components of your invention will come together and interact with each other. 

The level of detail for this will depend on your invention. Your invention may not be particularly intricate, or it may not have a lot of parts that interact with each other.  

If you aren’t thinking about not developing a prototype before you apply, make sure you can at least create a diagram of your invention that is sufficiently detailed. 

Patent Then Prototype Approach

If you are going to file a patent application before you prototype, you will need to keep some things in mind.  Because you are not building a prototype first, you will have to account for the fact that your application may not include all the details that are necessary or that you might want to include to make sure your idea is fully described within the patent application. 

If you wait to build a prototype until after filing your patent application, you may discover new things as you build. You may find that what you thought might come together in one way actually does not work as well as you thought. 

You could realize that a different component would work better in the place of something you already described in your patent application. If this happens, there are a couple of ways to address it. 

Continuation-In-Part Application

First, you could file a continuation-in-part application. A continuation-in-part application is used when you have found some improvements or add-ons to your original invention while it is patent pending. A continuation application is best used when the changes, improvements, or add-ons to the original design are small and not extensive. 

Second Patent Application

A second option if you discover new information while you are building your prototype is to file a second patent application. This strategy is better in situations in which the changes are much greater to the original invention that you sought a patent for. 

If the prototype has led you to a much different concept or way to accomplish something, you may want to file a second patent application that better describes the new idea.

If you are considering this, it’s a good idea to get legal advice to determine whether it is worth it to file multiple patent applications. You will also want to consider from a business perspective whether you can take on the costs of a second patent application. 

Prototype Then Patent Approach

Many people choose to build a prototype of their invention before they begin their patent application. This can be helpful for you to troubleshoot potential issues or questions you may have about how your invention will work.  Man reviewing his files

It will also help when it comes time to draft your patent application, as you will be able to provide the level of detail necessary to meet the applicable patent law standards applied by the US Patent Office

Benefits of Getting a Patent First

There are numerous benefits to obtaining a patent before you invest in building a prototype for your idea.  These will hinge on how extensive your invention is, and how important it is to get an early filing date for your patent application.  

Provides You an Earlier Filing Date

Filing a patent application without building a prototype will help you get an earlier filing date than you otherwise would if you invested time in building a prototype. Your filing date reserves your priority toward the patent. Having the earliest possible filing date is important because the United States operates under a “first-to-file” system. 

A first-to-file system means that the first inventor to file for a patent has priority for that patent. Under a first-to-file system, your filing date is more important than ever so you can make sure to stake your claim to your idea and preserve your patent rights. 

If you are worried that someone else will beat you to the punch on your idea, it may be smart to file a provisional patent application even if you have not built a prototype to ensure you have the earliest filing date. 

Saves You Costs Up Front

Another benefit to pursuing a patent application without a prototype is you make upfront financial savings.  Building a prototype can often cost substantial funds. Depending on your material costs, these can add up quickly, especially where multiple versions of your prototype are necessary. 

Further, you may have to enlist experts or other third parties to help develop your prototype.  These experts can also be costly. They also require confidentiality agreements to try to prevent your idea from being released to the public before you have had a chance to file a patent application. 

By waiting to build a prototype, you can apply these funds to developing a thorough patent application that can position you well for patent approval. 

Decreases Design Changes

Another benefit to obtaining a patent without building a prototype is that changes to your invention’s initial design will be lessened.  Because you will need to build the prototype the way it is described in the patent application, there will be less room to change course and build your invention in a different manner. 

Otherwise, as you built your prototype you may be motivated to pursue different designs or cater to the opinions of others.  By filing the patent application first, you have a blueprint you must follow. 

Benefits of Building a Prototype First

There are numerous benefits to building a prototype of your idea before you submit your patent application. Oftentimes, especially with more complicated ideas and inventions, this is the better strategy.

Troubleshoots Issues With Your Patent

Prototypes are helpful to determine the functionality of your invention. By building a prototype, it forces you to develop applicable designs and procedures for your invention. Prototypes help make sure your invention will accomplish what it is set out to do. Person drafting a prototype for an idea patent

Moreover, building a prototype may bring to light places where your invention could improve. As you develop your prototype, issues with the process or a specific material may come about that you would otherwise have never known if you were simply drawing a diagram of your invention. 

Ensures a Thorough Patent Application

Building a prototype before filing a patent application can also help set you up for a successful patent prosecution.  By building a prototype, you will work out any kinks in the invention.  You will also be able to write a more thorough and explanatory written description of your idea in the patent application. 

This will decrease the questions your patent examiner may have as your application moves through the Patent Office process.  The less back and forth with the Patent Office discussing your invention, the lower the attorney’s fees you will have to pay in responding to the Office Actions

Incorporates Lessons From the Market 

Another benefit to building a prototype before filing a patent application is that it allows you time to incorporate lessons you may learn during market testing.  Customers trying out the prototype of your product may have valuable insight into changes you can make to improve your design. 

By incorporating this customer feedback, your patent may have a better ability to be more marketable in the future, which will result in a greater financial success for you. 

Attempting to manufacture your product through a prototype may also inform places where your invention might be too costly.  It can also identify ways in which you can develop the invention in a smarter manner. When you have the product tangibly in front of you, you will be able to make more informed decisions on how the invention should look and feel. 

Conclusion

You can patent an idea without a prototype, so long as you can create an adequate description and diagrams. Filling a patent application without a prototype has some benefits, but there are also some cons.  

Overall, if you are worried someone else will beat you to the punch on your invention, then reserving your earlier filing date is important and you may want to file before you build a prototype. 

However, building a prototype helps you troubleshoot potential issues with your invention, and allows you the opportunity to incorporate improvements and ideas from customers and manufacturing. This will help you develop and present a more thorough patent application than you otherwise would without a prototype.  

Overall, it’s a good idea to get legal advice from a law firm specializing in patents on whether filing an application for your idea without a prototype is the best decision for you. 

If you've never patented anything before, watch these 6 short intro videos to learn exactly what you need to know about the patent process to protect your valuable idea.

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