For small and medium-sized businesses (SMBs) developing new products, intellectual property (IP) protection is an important consideration, but not always a necessary investment. Patent costs can be significant, and a patent doesn’t automatically prevent competitors from bringing similar products to market.
Businesses must weigh whether a utility patent or design patent will provide a real competitive advantage or if resources would be better spent on product development, branding, or manufacturing. A patent gives inventors exclusive rights to their invention, but enforcement is not automatic—it requires legal action if competitors create similar products that may infringe on the patent.
This guide helps SMBs navigate the patent process—from deciding whether a patent is the right choice to understanding the application timeline and costs. It outlines key steps such as conducting a patent search, filing a provisional patent application, and working through the patent examination process with the United States Patent and Trademark Office (USPTO). Beyond the filing process, this guide also explores the realities of patent protection, enforcement challenges, and cost-effective IP strategies, giving businesses the insights they need to determine whether a patent or an alternative form of IP protection aligns with their long-term growth and competitive strategy
Key Takeaways
- Patents offer legal protection but aren’t always necessary; businesses should evaluate costs, enforcement challenges, and product lifespan before filing.
- Choosing the right patent type is essential since utility patents protect functionality, design patents cover aesthetics, and provisional patents provide short-term flexibility.
- Patent costs can be significant, including filing fees, attorney costs, and maintenance fees, so businesses must weigh these expenses against potential ROI and alternative protections.
- Alternatives like trade secrets, trademarks, and NDAs can be effective, especially in fast-moving industries where speed to market and brand positioning may provide stronger competitive advantages than a patent.
What Is a Patent?
A patent provides inventors with exclusive rights to their invention for a specific period, allowing them to prevent others from making, using, or selling the patented product without permission. In the U.S., patents are granted by the USPTO and fall under different categories, with a utility patent typically lasting 20 years and a design patent lasting 15 years from the filing date.
However, securing patent protection is not automatic. Filing a patent application is only the first step—each application undergoes a patent examination process, where a patent examiner reviews the claims for originality and compliance with patent law.
Even after a patent grant, enforcement is the responsibility of the patent owner, often requiring legal action if competitors infringe on the patent. This can add substantial costs beyond the basic filing fee, including examination fees, maintenance fees, and potential litigation expenses.
Additionally, patents are jurisdictional, meaning protection applies only in the country where the patent application is approved. Businesses looking for foreign patent protection must file separate applications in each market, increasing patent costs due to government filing fees, translations, and legal representation.
When Should Businesses Consider a Patent?
Before diving into the specifics of patent types, costs, and legal processes, it’s important to first determine whether a patent is the right strategic move for your business. While patents can offer valuable protections, they aren’t always necessary—or the best use of resources—for every SMB. Determining whether a patent is beneficial or if alternative protections are more practical can guide your decision-making.
When a Patent Makes Sense
If your product introduces a new and useful process, technology, or design that sets it apart from competitors, filing a patent application can help prevent others from replicating your innovation. This is particularly important in industries where replication is common and enforcement is practical—such as consumer electronics, industrial tools, and mechanical innovations.
In addition to providing market exclusivity, patent ownership can create licensing opportunities, allowing businesses to generate revenue from their intellectual property IP without direct manufacturing or sales. Patents can serve as leverage in negotiations with manufacturers or investors, potentially increasing business valuation and creating new revenue streams. Additionally, securing a patent pending status before seeking investor funding may enhance credibility, demonstrating that the product has legal protection in place.
When a Patent Might Not Be Necessary
For businesses in fast-moving industries like software, fashion, or seasonal retail products, the patent process may not always align with short product cycles. The time and costs involved—often spanning years—can make speed to market a more effective strategy than exclusivity. Some businesses may find that first-to-market advantages outweigh the legal protections of a patent.
If an innovation is difficult to reverse-engineer, keeping it as a trade secret may provide stronger protection than a patent grant, which requires public disclosure of the invention. Additionally, businesses without the financial resources to enforce a patent through litigation may find that alternative protections, such as trademarks, nondisclosure agreements (NDAs), or strategic partnerships, are more practical ways to safeguard their product.
Types of Patents
For SMBs, choosing the right type of patent depends on what aspect of a product needs protection, budget constraints, and long-term business goals. Below is an overview of the three main types of patents, including how they work, their costs, and when they make sense for a business.
Utility Patents
A utility patent protects the functional aspects of an invention, including new product designs, mechanical features, or technological innovations. If a product introduces a unique way of solving a problem—such as an improved fastening system on a dog harness or a self-cleaning pet feeder—a utility patent helps prevent competitors from copying its mechanics or technical functionality.
Utility patents offer broad protection but can be costly and complex to obtain. The application process requires detailed technical documentation explaining how the invention works, along with a thorough description of its components and use cases. Approval can take one to three years, and costs can include filing, attorney, and ongoing maintenance fees.
Design Patents
A design patent protects a product’s ornamental design rather than its function. If a business has created a distinctive product shape, packaging, or aesthetic feature, a design patent ensures competitors cannot replicate those visual elements. This type of patent is commonly used in industries where appearance helps drive sales, such as consumer goods, fashion, and home accessories.
Compared to utility patents, design patents are faster to obtain and generally more affordable. However, they only protect against direct copies of a product’s appearance—a competitor can still create a functionally similar product with a different look. Because of this, some businesses combine utility and design patents to protect both how a product looks and how it functions.
Provisional Patents
A provisional patent application is a temporary filing that gives businesses 12 months to refine their invention and decide whether to pursue a full patent. It is commonly used to secure an early filing date, test market demand, or attract investors before committing to the full patent process. While a provisional application does not grant enforceable rights, it allows businesses to use the term “patent pending”, which can help deter competitors.
Filing a provisional application is less expensive than filing a full patent, making it a practical choice for businesses still evaluating their product’s commercial potential. However, a provisional application must be converted into a full utility patent within a year, or the protection expires. For businesses that aren’t yet ready to invest in a full patent, a provisional filing provides a cost-effective way to hold their place in line while they assess market viability.
How Much Does It Cost to Patent a Product?
Patent costs vary widely, ranging from a few hundred dollars to thousands depending on complexity, legal fees, and maintenance costs. Expenses include filing fees, attorney fees, and international application costs. Understanding these expenses upfront helps businesses determine whether a patent aligns with their financial strategy.
Total Fees
The costs associated with filing a patent can fluctuate based on a variety of factors:
- Provisional Patent Application: $70 to $300 if self-filed.
- Utility Patent Application: Typically $10,000 to $20,000, with approval taking 2-4 years.
- Design Patent Application: Generally less expensive, costing $2,000 to $3,000, with a faster approval time of 1-2 years.
- Maintenance Fees: Due at 3.5, 7.5, and 11.5 years, ranging from $1,000 to $7,000 per payment to keep the patent active.
Patent Attorney Fees
Hiring a patent attorney can significantly increase the costs involved in securing a patent, but their expertise can be helpful. Legal fees can range from $5,000 to $30,000 or more, depending on the complexity of the application and the attorney’s experience. If you’re considering international patents, the costs escalate further as you will need to file separate applications in each country and secure legal representation there. This includes translation fees, local attorney fees, and additional filing fees, making international protection a significant investment.
Balancing Patent Costs vs. Product Development Costs
Every dollar spent on patents is a dollar not spent on product development, marketing, or manufacturing. Small businesses must assess whether patent protection justifies the cost or if resources would be better spent scaling production, improving designs, or accelerating market entry.
Not all patents generate enough return on investment (ROI) to be worthwhile. For some businesses, alternative protections—such as trademarks, trade secrets, or licensing agreements—offer more cost-effective ways to secure a competitive advantage without the heavy legal and filing expenses.
Not all patents generate enough return on investment (ROI) to be worthwhile. For some businesses, alternative protections—such as trademarks, trade secrets, or licensing agreements—offer more cost-effective ways to secure a competitive advantage without the heavy legal and filing expenses.
The Patent Process & Timeline: What to Expect
Once a business decides to pursue a patent, the next step is understanding the process and expected timeline. Securing a patent isn’t immediate—it can take anywhere from 1 to 3 years from the initial filing to final approval. The exact timeframe depends on the type of patent, the complexity of the invention, and how many revisions are required during the examination process. Knowing what to expect at each stage helps businesses plan and align patent protection with their overall product strategy.
Step 1: Conduct a Patent Search
Before filing, a patent search helps determine whether similar patents already exist. This step can be done independently using the USPTO database or with the help of a patent attorney.
Step 2: File a Provisional or Non-Provisional Patent Application
Filing a provisional patent application allows businesses to secure an early filing date while they refine their invention. This option provides 12 months of temporary protection, offering time to test market demand or secure investors before committing to a full application.
A non-provisional patent application requires detailed technical claims, legal documentation, and product drawings. This step officially starts the USPTO review process, where examiners assess whether the patent meets novelty and clarity requirements.
Step 3: Patent Examination
Once submitted, the patent examination process begins. A USPTO patent examiner reviews the application for originality and completeness, often issuing office actions requesting revisions or clarifications. Most applications go through multiple rounds of office actions, requiring businesses to respond with modifications before approval.
Step 4: Patent Approval & Ongoing Maintenance
If the application is approved, the patent is granted, but the process doesn’t end there. For utility patents, businesses must pay maintenance fees at 3.5, 7.5, and 11.5 years to keep the patent active. Failing to pay maintenance fees results in patent expiration. Once expired, the invention enters the public domain, allowing anyone to use, manufacture, or sell it without restriction. However, the original patent holder may still petition for reinstatement within the grace period if the non-payment was unintentional.
International Patent Considerations & Long-Term Planning
Patents are territorial rights, meaning protection is limited to the country where the patent is granted. To safeguard an invention in multiple countries, separate patent applications must be filed in each desired jurisdiction. The Patent Cooperation Treaty (PCT) facilitates this process by allowing inventors to file a single international application, which can later be pursued in multiple countries. The PCT provides a 30-month window from the earliest filing date (priority date) to enter the national phase in member countries, allowing time to assess market potential and secure necessary resources.
However, pursuing international patents can be costly. Expenses include translation services, legal representation, and individual country filing fees, which can accumulate significantly. Long-term planning is essential for businesses aiming to protect their innovations globally. This involves budgeting for international filings and strategically evaluating the importance of patent protection in various markets. Factors such as market size, potential revenue, and the competitive landscape should guide decisions on where to seek patent protection.
What Happens If You Don’t Patent?
Not securing a patent means competitors can legally reproduce your product, making it harder to maintain market exclusivity. If a competitor files a patent for a similar invention first, they could prevent you from selling your product, even if you developed it earlier. While patents provide legal protection, they don’t automatically prevent infringement—enforcement requires legal action, which can be costly and time-consuming.
For some businesses, a patent may not be the best strategy. In fast-moving industries like consumer electronics, fashion, and software, product cycles are short, and speed to market can offer a greater advantage than exclusivity. In these cases, alternative protection strategies—such as trade secrets, trademarks, and licensing agreements—may provide more practical and cost-effective safeguards.
Alternatives to Patents: Other Ways to Protect Your Product
The following alternatives can help prevent unauthorized use of your product, strengthen market positioning, and establish legal safeguards—without the expenses and complexities of the patent process.
- Trademarks protect brand names, logos, and packaging, preventing competitors from using similar branding that could mislead customers or dilute a company’s identity.
- Trade secrets safeguard confidential business information, such as product formulas, designs, or manufacturing processes. Unlike patents, trade secrets do not require public disclosure, allowing businesses to keep critical innovations private.
- Non-disclosure agreements (NDAs) legally bind employees, manufacturers, and business partners, preventing them from sharing proprietary information. NDAs provide an additional layer of legal protection when working with third parties.
- Licensing agreements allow businesses to sell or share intellectual property (IP) rights without securing a patent. This can create new revenue streams while maintaining ownership and control over the innovation.
Making the Right Decision for Your Business
Patents can be a powerful tool for protecting innovation, but they aren’t always the right fit for every business. SMBs must weigh the costs, timelines, and legal complexities of patenting against their long-term growth strategy. In some cases, first-to-market advantages, trade secrets, or licensing agreements may provide more practical and cost-effective protection.
Gembah helps businesses navigate every stage of product development—from initial concept to manufacturing and market entry. Whether a patent is part of your strategy or not, understanding your business needs, competitive landscape, and available IP protections is key to making an informed decision.
Frequently Asked Questions
When should I consider getting a patent?
A patent makes sense when your product offers a clear competitive advantage and is at risk of being copied. However, the costs, timeline, and enforcement challenges should be weighed against your business goals and industry dynamics.
What are the main types of patents, and how do they differ?
Utility patents protect the functional aspects of a product, while design patents cover its unique visual appearance. A provisional patent provides temporary protection for 12 months, allowing businesses to test the market before committing to a full utility patent.
How much does it cost to patent a product?
Patenting costs vary based on complexity, legal fees, and maintenance requirements. Businesses should consider whether securing a patent provides enough long-term value to justify the investment.
What happens if I don’t patent my product?
Without a patent, competitors can legally replicate your product, which may impact your market position. Some businesses focus on rapid product development, branding, or trade secrets as alternative ways to maintain a competitive edge.
Are there alternatives to patents that small businesses should consider?
Yes, trade secrets, trademarks, and nondisclosure agreements (NDAs) can provide protection without the cost and complexity of patents. The best option depends on your industry, product type, and long-term strategy.
