The United States Patent and Trademark Office (USPTO or Office) is the government agency responsible for examining patent applications and issuing patents. A patent is a type of property right. It gives the patent holder the right, for a limited time, to exclude others from making, using, offering to sell, selling, or importing into the United States the subject matter that is within the scope of protection granted by the patent. The USPTO determines whether a patent should be granted in a particular case. However, it is up to the patent holder to enforce his or her own rights if the USPTO does grant a patent.

The purpose of this article is to provide you with basic information about filing a utility patent application. A patent application is a complex legal document, best prepared by one trained to prepare such documents. Thus, after reviewing this guide, you may wish to consult with a registered patent attorney or agent.

There are various types of patents -- utility, design, and plant. There are also two types of utility and plant patent applications -- provisional and nonprovisional. Each year the USPTO receives approximately 350,000 patent applications. Most of these are for nonprovisional utility patents.

This guide contains information to assist you in filing your nonprovisional utility patent application. It discusses the required parts of the utility patent application and identifies some of the forms you may use. This information is generally derived from patent laws and regulations, found at Title 35 of the United States Code (U.S.C.), and Title 37 of the Code of Federal Regulations (CFR).

Nonprovisional Utility Patent Application Requirements

A nonprovisional utility patent application must be in the English language or be accompanied by a translation in the English language, a statement that the translation is accurate and a fee set forth in 37 CFR sect.1.17(i).

All papers which are to become part of the permanent records of the USPTO must be typewritten or produced by a mechanical (or computer) printer. The text must be in permanent black ink or its equivalent; on a single side of the paper; in portrait orientation; on white paper that is all of the same size, flexible, strong, smooth, nonshiny, durable, and without holes. The paper size must be either:

• 21.6 cm. by 27.9 cm. (81/2 by 11 inches), or
• 21.0 cm. by 29.7 cm. (DIN size A4).

There must be a left margin of at least 2.5 cm. (1 inch) and top, right, and bottom margins of at least 2.0 cm. (3/4 inch). Drawing page requirements are discussed separately below.

A nonprovisional utility patent application must include a specification, including a claim or claims; drawings, when necessary; an oath or declaration; and the prescribed filing, search, and examination fees. A complete nonprovisional utility patent application should contain the elements listed below, arranged in the order shown.

1. Utility Patent Application Transmittal Form or Transmittal Letter
2. Fee Transmittal Form and Appropriate Fees
3. Application Data Sheet (see 37 CFR sect. 1.76)
4. Specification (with at least one claim)
5. Drawings (when necessary)
6. Executed Oath or Declaration
7. Nucleotide and/or Amino Acid Sequence Listing (when necessary)

These elements are further described as follows:

1. Utility Patent Application Transmittal Form or Transmittal Letter

A Utility Patent Application Transmittal Form (Form PTO/SB/05) or a transmittal letter should be filed with every patent application to instruct the USPTO as to what actual types of papers are being filed (e.g., specification, claims, drawings, declaration, information disclosure statement). It identifies the name of the applicant, the type of application, the title of the invention, the contents of the application, and any accompanying enclosures. (Form PTO/SB/21 is to be used for all correspondence after initial filing.)

2. Fee Transmittal Form and Appropriate Fees

The Fee Transmittal Form (Form PTO/SB/17) may be used to calculate the prescribed filing fees and indicate the method of payment, by check or by credit card. The fees are dependent upon the number of sheets of paper in the specification and drawings, the number and type of claims presented, and whether or not a written assertion of small entity status is provided.

The filing, search, and examination fees for a patent application should be submitted with the application and must be made payable to the "Director of the United States Patent and Trademark Office" if paid by check. If an application is filed without the fees, the applicant will be notified and required to submit the fees within the time period set in the notice. If the basic filing fee was not paid at the time of filing the application, a surcharge is also required for late acceptance of the basic filing fee. Fees are subject to change and the applicant should consult the current Fee Schedule before filing.

Please note that two sets of fees exist, one for small entities and one for other than small entities. If you qualify as a small entity for patent fee purposes, no special form is required to claim your entitlement to reduced fees (you may check a special box on the transmittal form), but you should only pay small entity rates after ensuring that you qualify for the small entity discount. For example, if the inventors have not assigned any rights in the invention set forth in the application and are not under any obligation to do so (as may be required in an employment contract), small entity status is appropriate.