CAN I PATENT THIS?

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I recently developed a prototype, and after a cursory glance at a LinkedIn prompt - "Do you have any patents?" -  I began to wonder hey: can I patent this? And perhaps more importantly: should I patent this? First, it is important to outline what a patent is and what it covers. In the United States a patent is: 
              patent:  a set of exclusive rights granted to the inventor by the United States Patent and Trade                           Office for  a defined period of time, typically 20 years from the date the patent was filed. 
                 - a patent does not mean you can immediately start marketing and selling your product (there are                       other regulations you may have to meet)
                 - a patent essentially excludes others from marketing and selling what is   covered by your patent

The prototype I developed is a device with a game-like interface for hand rehabilitation. In order to be patent-able, the subject matter must be novel and non-obvious, and fall under one of these three categories:

     utility:  a useful new discovery or invention of a process or                    method, machine, composition, article    of  manufacture,                        or improvements of such. (Most patents are utility.)
     design: an original, new, or ornamental design for a manufacture      process. (Should not be useful, ie  a new design for a bottle)
    plant: for the discovery and asexual reproduction of a distinct a         new variety of plant. (The first plant  patent went to Henry Bosenberg for a climbing rose.)

While a patent may be the first step to developing a profitable product, extravagant wealth does not typically ensue upon patenting. In fact, only ~ 2% of patents go on to make the inventor money. That said, if you're an inventor, chances are you are creative and determined, and obtaining a patent might be an important milestone in following your dreams. A patent is a nice stamp of approval, is a great exercise in learning the patent process, and go ahead and dream big!  With a patent you could:
                  a) begin manufacturing the product and selling it yourself
                  b) obtain licensing rights and begin receiving royalties 

Now my prototype is somewhat toy-like, so I anticipate that the eligibility criteria I may face the most resistance with is the "non-obvious" stipulation, due to the relatively low-tech nature of the design. But let's forge on and say that I am qualified and determined to file a patent. Here are the basic steps to proceed.
 

1. Copiously and carefully make notes of the design. Include clear drawings and sketches through the invention process, and come up with a detailed, clear set of descriptions and drawings for your design
2. Conduct a prior art search to identify identical or similar technology. PatentScope is a great place to start 
3. Create patent claims that clearly outline which aspects of your invention are to be covered under the patent. This is a key step, and often patent attorneys or other professionals step in and make sure these claims are not too broad or too specific.
   
4. Draft an abstract detailing the nature and function of your invention and include why it is worthy of a patent. 
5. Make digital copies of all of these documents.  _
6. Submit patent filing electronically to the United States Patent and Trademark Office at USPTO.gov (Link is for unregistered users) 
7. Respond to queries and requests from the USTPO

Now let's turn to the fees. They are organized into two groups: the fees charged by the USTPO to file a patent, and patent attorney fees. 

1. USTPO fees (for small entities) 
   a. filing fees 
      1.  Basic filing fee - $70 
      2.  Search fee - $300 
      3. Examination fee - $370
   d. Issuing fee - $480
   = $1,210  nonprovisional patent by a small entity
   
2. Patent attorney fees 
   a. Fee per hour: $250-400 

Now the bare bones cost to file a patent without professional help is not ridiculous, but that said, a patent attorney increases the likelihood that the patent will go through. In addition, I did not even go into the details about the #7 - in which the USTPO may reject some (or all) of your patent claims. While the inventor has 2 months to respond to the claims, hefty fees extension costs begin kicking in for each additional month. In addition, there are periodic maintenance fees once the patent is issued, adding hundreds more to ensure the exclusivity of the patent is retained. 

So in conclusion, yes LinkedIn, I do think I have something I can patent. However, I am quite daunted by the costs. However, I don't want to give up. I am going to contact out my alma mater's office of industrial liaison, which covers all patent fees, and see if I have an application we can move forward with. The website says it may be 1-2 years before the USTPO responds to the patent application, and that as inventor, if my product became a commercial success, I would be entitled to 42.5% of any net income. That seems like a bit of a deal with the devil to me, but they claim it is one of the most generous royalty-sharing policies of any university. Although I feel like a bit of a sellout, I think I will at least contact the office and see if they would be willing to help. Sometimes you do need a little guidance from professionals, even if it does mean giving up ownership. 


         
  Sources:

1. USTP Getting Started
2. LegalZoom: How to patent a toy
3. NOLO: Qualifying for a Patent
4. IP Watchdog: Why do you want a patent?
5. US Patent Office Fees
6. Patent Office Fees 

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