How to Get a Patent: The US Route, the Decisions, and Free Help

To get a US patent, an applicant files an application with the USPTO, persuades an examiner that the claimed invention meets the statutory tests, and pays the issue fee within three months of the notice of allowance. In this article, "the route" means that sequence plus the decisions that fall to the applicant along the way. It describes United States rules only, as published in October 2026.

Updated in April 2026, the USPTO overview of the patent process lays the route out as six stages, from the decision whether a patent is right for you to the receipt and upkeep of the patent.

A patent is a right to exclude that the owner has to enforce

Under 35 U.S.C. 154(a)(1), every patent contains a grant of the right to exclude others from making, using, offering for sale or selling the invention throughout the United States, and from importing it. USPTO’s page on managing a patent adds that a patent gives no right to practice the invention, only the right to exclude others from doing so.

Enforcement sits with the owner. That same page says the Office has no jurisdiction over infringement questions and does not test applications for infringement; 35 U.S.C. 281 gives a patentee a remedy by civil action.

This article concerns utility patents, which cover any new and useful process, machine, manufacture or composition of matter, as well as improvements of them.

"Patent pending" carries less weight than it suggests. According to the USPTO, that phrase and "patent applied for" have no legal effect, and protection does not start until the patent is granted.

Eligible subject matter, novelty, non-obviousness and a full description

Examiners test the claims, which define the scope of protection, against provisions of Title 35 on subject matter, novelty, obviousness and description.

Public disclosure before filing starts a one-year clock

Under 35 U.S.C. 102(b)(1), a disclosure made one year or less before the effective filing date is not prior art when the inventor or a joint inventor made it, when someone else obtained the subject matter from them, or when it repeats what the inventor had already publicly disclosed. Section 102 itself does not use the phrase "grace period"; the USPTO’s manual does.

MPEP 2151 measures the year from the filing date of the earliest US or foreign application to which a proper benefit or priority claim is made and which supports the claimed invention. On its provisional application page, the USPTO says a disclosure more than one year before the provisional filing date would preclude patenting in the United States, and that a publication or a sale needs only to be available to the public to count. Read together, these rules make the date of the first filing the reference point for every disclosure that came before it.

Confidentiality does not take a sale out of the analysis. MPEP 2152 reports that in Helsinn Healthcare v. Teva, 139 S. Ct. 628 (2019), the Supreme Court held that an inventor’s sale to a third party obliged to keep the invention confidential can qualify as prior art under section 102(a).

Searching before filing is advisable and cannot settle patentability

Not required but advisable: that is how the USPTO’s Pro Se page describes a prior art search before filing. The agency’s overview warns that an invention already publicly available generally cannot be patented. Patent Public Search gives the public access to US patents and published applications; from November 7, 2026 it requires a sign-in with a USPTO account.

Last updated in May 2024, the multi-step strategy page lists six steps, in this order:

1. Brainstorm terms that describe the invention.

2. Run a keyword search in Patent Public Search.

3. Review the documents found in depth, including their drawings, specifications and claims.

4. Expand to the relevant CPC classifications.

5. Review cited references, including patents that cite those found.

6. Widen the search beyond US patents, with non-patent literature or a patent professional’s search.

Search results have a stated limit: a preliminary search may not be as complete as the examiner’s, and an examiner may, and often does, reject claims on information the applicant’s own work missed. Before an application is filed, the Office cannot respond to inquiries about novelty or patentability; it also cannot advise on infringement or on the propriety of filing.

Some software tools describe themselves as an AI platform for ideas and patents. Such tools may help users organize invention-related information, but they do not establish whether an invention is patentable. The USPTO cautions that preliminary searches may miss relevant prior art; applicants should consult a registered patent attorney or agent about how search results affect the claims.

Self-filing is allowed, but organizations and foreign-domiciled applicants need a practitioner

37 CFR 1.31(a) lets an applicant file and prosecute their own case, or give power of attorney to patent practitioners, with two exceptions. A juristic entity (the rule’s own example is an organizational assignee) and an applicant domiciled outside the United States and its territories must be represented by a patent practitioner. Even where self-filing is permitted, the USPTO’s Pro Se page says the Office always recommends a registered patent attorney or agent to help prepare the application.

Published at 91 FR 13510 on March 20, 2026, a final rule added the foreign-domicile requirement, effective July 20, 2026, for every paper received on or after that date whatever the application’s filing date. Its notice describes the juristic-entity requirement as one the section "previously required." Domicile is the permanent legal place of residence of a natural person or the principal place of business of a juristic entity (37 CFR 1.9(p)). Citizenship is not the test.

Practitioners are admitted under 37 CFR 11.6, attorneys as patent attorneys and non-attorneys as patent agents. The Office of Enrollment and Discipline keeps the register of active practitioners, and anyone not on it is generally unable to represent others before the USPTO in patent matters. Choosing is the applicant’s job: the USPTO cannot help select or recommend a practitioner and does not regulate fees.

Free help has eligibility limits, and invention promoters are a stated risk

On its scam-prevention page the USPTO warns that not everyone is eligible to represent an applicant. It does not investigate complaints against invention promoters, but under the American Inventors Protection Act of 1999 it publishes them. Under 35 U.S.C. 297(a), a promoter must make written disclosures to the customer before any contract. The FTC adds that reputable invention marketing firms usually do not rely on large upfront fees.

The provisional application sets an early date and starts a 12-month limit

Under 35 U.S.C. 111(b), a provisional application needs a specification that meets section 112(a); no claim is required. The USPTO can assign a filing date without drawings, but drawings necessary to understand the invention should be included when filing because new matter cannot be added later. It must also carry the fee and a cover sheet naming the inventors. The USPTO does not examine these filings on their merits, and design inventions cannot use them.

Unless the applicant makes a timely request to treat it as a nonprovisional application (37 CFR 1.53(c)(3)), a provisional is regarded as abandoned 12 months after filing, with the last day moved to the next business day when it falls on a weekend or federal holiday (35 U.S.C. 119(e)(3)). Revival afterward is barred (35 U.S.C. 111(b)(5)), and the USPTO says the period cannot be extended.

What exists is restoration of the benefit: a nonprovisional application filed more than 12 but within 14 months afterward may claim it by petition, with a statement that the delay was unintentional (35 U.S.C. 119(e)(1); 37 CFR 1.78). The USPTO fee schedule revised in August 2026 prices that petition at $2,260, with discounted rates of $904 and $452.

Those 12 months do not count toward the 20-year patent term. Public disclosure during the provisional period carries its own risk: the USPTO warns that if the 12 months expire before a nonprovisional is filed, the applicant may lose more than the early date and may lose the right to ever patent the invention.

Filing a nonprovisional application takes more parts than the filing date requires

A nonprovisional utility application gets its date when the USPTO has in hand a specification (35 U.S.C. 111(a); 37 CFR 1.53(b)); claims are optional at that stage. The fee, the oath or declaration and at least one claim may follow within a period the Director prescribes, at a surcharge of $170, or $68 and $34 at the reduced rates (2026 USPTO fee schedule). Without them the application is regarded as abandoned.

Electronic submission runs through Patent Center and requires a registered account with one-time identity verification. Verification through ID.me takes about 30 minutes, the USPTO says; a paper form takes up to 10 business days, and it advises starting early. Since January 17, 2024, a new nonprovisional utility application pays a surcharge of $430, $172 or $86 by entity size when its specification, claims or abstract is not filed in DOCX.

After submission, the USPTO sends a filing receipt with the application number and date, entity status, foreign filing license data and the date the Office expects to publish. MPEP 503 encourages applicants to check it for accuracy.

Inventors and applicants are separate roles on the filing

An inventor, in the statute’s words, is the individual who invented or discovered the subject matter, or the individuals collectively for a joint invention (35 U.S.C. 100(f)); joint inventors need not have contributed equally or to every claim (35 U.S.C. 116(a)).

Inventors named in error can be corrected under section 116(c); once the first action on the merits has issued, the USPTO charges $690 for the correction, or $276 and $138 at the reduced rates (fee schedule, August 2026).

Applicants may be the inventors themselves or, under 35 U.S.C. 118 and 37 CFR 1.42, a person to whom the inventor has assigned the invention or is obligated to assign it.

Only natural persons can be inventors. Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), held that the Patent Act requires an inventor to be a natural person; the Supreme Court denied certiorari on April 24, 2023. The USPTO’s Revised Inventorship Guidance for AI-Assisted Inventions, 90 FR 54636 (November 28, 2025), rescinded the February 2024 guidance in its entirety. It applies one legal standard for inventorship to all inventions whether or not AI systems were used.

Entity status sets how much of the fee schedule applies

Most USPTO fees fall by 60 percent for a small entity and 80 percent for a micro entity (USPTO Save on fees page; 2026 fee schedule). The applicant has to assert small entity status in the application.

Micro entity status starts from small entity status and adds limits, among them no more than four previously filed applications naming the inventor and gross income no more than three times the median household income. As of September 15, 2026 the USPTO’s maximum qualifying gross income is $262,380. Status must be re-evaluated each time a fee is paid.

All amounts come from the USPTO fee schedule effective in January 2025 and revised on August 14, 2026; the totals are sums of its rows. A small entity paying the standard $140 basic fee would owe $800 in total, and filing through Patent Center brings that basic fee to $70.

Faster examination is sold at filing, within a yearly cap

Track One prioritized examination is available for a fee when an original utility or plant application is filed. Effective July 8, 2025 the USPTO raised the yearly limit on accepted requests from 15,000 to 20,000 (90 FR 29990).

The request fee is $4,515 at the full rate, $1,806 for small entities and $903 for micro entities, plus a processing fee of $150, $60 or $30, according to the 2026 USPTO fee schedule. Under 37 CFR 1.102(e), the application may contain no more than four independent claims and thirty total claims, with no multiple dependent claim. The USPTO says Track One allows a final disposition within about twelve months.

For ordinary examination, the USPTO Patents Dashboard shows September 2026 traditional first-action pendency of 20.5 months and traditional total pendency of 28.8 months, or 33.6 months counting requests for continued examination. These are averages across applications, and they say nothing certain about one file.

After filing, the Office publishes, examines and sets deadlines that do not all move

Under 35 U.S.C. 122(b)(1), an application is published promptly after 18 months from the earliest filing date for which a benefit is sought, although provisional applications and applications under a secrecy order are not published at all.

Publication ends confidentiality, the USPTO says, and the whole file history becomes public.

Every rejection or objection reaches the applicant in writing, with reasons (35 U.S.C. 132). Some or all claims are commonly rejected in the first Office action, according to the USPTO, and relatively few applications are allowed as filed. The action sets the reply period, usually three months. Under 37 CFR 1.136(a) an applicant may stretch that to the six-month statutory maximum by petition, for a fee that starts at $235 for the first month in 2026. Silence past the deadline leaves the application abandoned (35 U.S.C. 133), and revival requires a showing that the delay was unintentional. An applicant whose claims have been twice rejected may appeal to the Patent Trial and Appeal Board (35 U.S.C. 134).

When the examiner allows the claims, a notice of allowance specifies the issue fee, payable within three months (35 U.S.C. 151). Under 37 CFR 1.311 that period is not extendable, and an application with the fee unpaid is regarded as abandoned. Issue is priced at $1,290, or $516 and $258 at the reduced rates, on the 2026 USPTO fee schedule. A patent is published on its grant date, and its file then opens to the public.

The term runs from filing, and the patent lives on maintenance fees

For a utility patent, the term begins on the issue date and ends 20 years after the US filing date, or after the earliest earlier application it claims under section 120, 121, 365(c) or 386(c) (35 U.S.C. 154(a)(2)). Priority under section 119, which covers the benefit of a provisional, is left out of the count.

Maintenance fees fall due 3.5, 7.5 and 11.5 years after grant, and 37 CFR 1.362 allows payment without surcharge in the six months before each date. A six-month grace period with a surcharge follows, and under 35 U.S.C. 41(b) the patent expires at its end if the fee is unpaid. The USPTO states that it mails no notice when a payment falls due. The three payments are $2,150, $4,040 and $8,280 at the full rate (USPTO schedule, August 2026).