For many growing businesses, intellectual property (IP) can feel like a legal maze—important, but hard to navigate. If your company is generating between $2 million and $100 million in revenue, you may be wondering: Are patents worth the investment? This blog kicks off our five-part series on patents, starting with the basics: What do patents do for you, and where do you start?
Why Patents Matter for Growing Companies

Patents 101: What Growing Businesses Need to Know

For many growing businesses, intellectual property (IP) can feel like a legal maze—important, but hard to navigate.

Catherine Cavella, ESQ.

Unless your product or service violates someone else’s patent, you already have permission to practice your invention. A patent allows you to exclude others from practicing your invention (making, using, selling or licensing it) so long as the patent remains in force. After the patent expires, your invention enters the public domain. 

Excluding others means they must go to you to license your patent in order to make, use, sell or license any technology that falls within your patent claims – even if they did not copy you.  This is an oft-overlooked feature, and one where patent protection is superior to trade secret protection.

There are three main types:

• Utility patents – for new and useful processes, machines, or compositions of matter
• Design patents – for new, original, and ornamental (non-functional) designs of a product
• Plant patents – for new varieties of plants (less common for most businesses)

To be patentable, an invention must be:

• Novel (new, as in not previously disclosed publicly)
• Non-obvious (not an obvious improvement or combination of existing tech)
• Useful (has a practical application – a pretty low bar to clear. Even novelty items have utility as novelty items)

How the Patent Process Works

The patent process can be complex, but here’s a simplified overview:

1. Confidential Invention Disclosure – Document your idea and its development. Be sure to disclose in sufficient detail, ideally with words and drawings or diagrams, even photographs if you have a working prototype. Many inventors and businesses struggle with this step. You don’t need a completed prototype, but in order to get the value you need from your patent team, you need to share how it works beyond just what you want it to do. What are its components? What information/material is input, what result is output, and what happens along the way to transform the input to the output?
   1.  You don’t need everything worked out perfectly, but you need more than the idea for the invention. If all you have is an idea for an invention, you do not have enough for a patentability search or a solid patent application.
   2. For software and methods, show with flow diagrams what happens at each step of the method or user interaction and which components are involved, and show architecture and information flow wherever you can. 
   3. For devices, be sure to show structure, ideally in drawings and also a narrative explaining the drawings and how each part works to deliver the result or benefits. 
   4. Be sure to share with your patent team what you consider your “secret sauce,” the thing(s) you believe are the most valuable features you want patented.
2. Patent Search – Check for existing patents or prior art.

   Patentability search vs. Infringement (Freedom to Operate) search. Did you know that there is more than one kind of “patent search”? 

   1. If you are looking to determine whether you can get a patent on your innovation, you want a patentability search. 
   2. If you are looking to determine whether your innovation violates someone else’s patent, you are looking for an “infringement” or “freedom to operate” patent search.  
   3. Both are “prior art” searches, meaning the researchers are reviewing the “prior art” – that is innovations that are already disclosed to the public.
      Be sure you order the right kind of patent search and that you understand and are comfortable with the scope of the search. Most patentability searches focus on patent database publications and do not include searches of products on the market or academic papers. Most patentability searches focus on US patent database publications, so if you are interested in researching in other countries or the World Intellectual Property Organization (WIPO), be sure to let the researcher know, and be ready to pay extra for the increased scope. 

      Understand the limits of patentability searches:  A patentability search is not exhaustive and should not be taken as a sign that you can definitely get a patent on your invention; nor should it be assumed to locate all relevant prior art. For one thing, in the U.S., patent applications are unpublished (not publicly searchable) for 18 months after filing. Therefore, even if you were willing to pay tens of thousands of dollars for weeks of full time searching and review, your researcher will not be able to see 18 months of prior art. 

      So, the patentability search is not to identify all the prior art that could be raised against your patent application. Rather, the purpose of a patentability search is to get a peek at the environment around your invention, in part to get a sense of what aspects of your invention are most novel and therefore most likely to be patentable.  

3. Patent Application – Work with a patent attorney to draft and file.
   Priority Date: The global patent system is “first to file,” which means when multiple parties invent similar technology, the patent goes to the one that was first to file a patent application, even if they were not the first to invent that technology. 

Because obtaining an early filing date is so important, the USPTO allows an inventor to secure an early date without needing all the formal requirements of a regular patent application.  The idea is to make it as easy and fast as possible for an inventor to secure an early filing date as soon as they can document their invention. This filing, which secures that inventor’s priority to the invention, is called a Provisional Patent Application (PPA).  It is a priority document, not a patent application, in that it will never be examined by a patent examiner or become a patent. 

To get a patent on the invention, the inventor must file a Nonprovisional Patent Application (NPA) claiming priority from the provisional (PPA) first disclosing the invention. This “priority claim” means that for purposes of prior art, your priority date is the date your PPA was filed, not the date your NPA was filed. 

Working With A Patent Attorney

Working with a patent attorney or patent agent to illustrate and document your invention is a two-way street. Remember that the patent practitioner cannot read your mind and must work from the documentation, drawings, photographs and explanations you provide. The patent practitioner is not the expert in your invention – you are. 

Your responsibility is to communicate your invention to your patent practitioner and clarify where needed. The patent practitioner’s responsibility is to translate your vision, as communicated by you, into a patent application designed to give you the best chance possible at achieving your objectives.  You should expect to need to clarify and expand and correct the patent application drafts.  The better your initial disclosure to your patent attorney, the better your drafts and drawings will be. 

Once your patent application (PPA or NPA) is filed, your invention is “patent pending” and your priority is secured to whatever novel elements you have disclosed. Note that for elements not disclosed and for elements that are not novel, your priority is not secured. This is why we recommend a more fleshed out, complete PPA whenever possible. 

Key Takeaways

• Patents are strategic tools, not just legal protections—they can help businesses of all sizes protect innovation, attract investors, and create licensing opportunities.
• A patent gives you the right to exclude others, not necessarily the right to use your invention. This distinction is critical for understanding how patents work in practice.
• There are three main types of patents: utility, design, and plant. Most businesses will focus on utility and design patents. To be patentable, an invention must be novel, non-obvious, and useful.
• The patent process starts with a detailed invention disclosure, which should include structure, function, and your “secret sauce.”
• There are different types of patent searches—make sure you’re ordering the right one (patentability vs. freedom to operate).
• Filing a provisional patent application (PPA) can secure your priority date quickly, but it must be detailed enough to support a future nonprovisional application.
• Working with a patent attorney is a collaborative process—you bring the expertise on the invention, they bring the expertise on how to protect it.

In the next blog, we’ll explore What happens after you file your patent application —including Office Actions, Rejections, working with Patent Examiners, Allowance and Issuance. 

🔍 Ready to learn more about how patents could fit into your business strategy?
Download our free CEO Guide to Patents (What Every CEO Needs To Know About Patents)  to learn more about patents and uplevel your decision-making when it comes to patents.

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Catherine Cavella

Since 1992, Catherine Cavella, Esq. Her focus on Trademark Law and Copyright Law for the last few decades gives her deep insights into the fundamental principles behind the rules. Catherine regularly writes about new developments in trademark law, copyright law, and internet law.

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