A Utility patent protects the invention’s functional aspects and the inner workings of the product. To qualify for a utility patent, your idea must fit into one or more of these categories:
The best way to protect an invention is with a patent. That’s why you need to know which type of patent is right for you. This is all part of creating your strategy to profit from your patent.
There are 3 types of patents to choose from, and the right fit for you depends on your idea. Knowing which type you need will get you started in your application process.
The 3 Types of Patents
There are three types of patents to consider:
- Utility patent,
- Design patent, and
- Plant patent.
While this article will define a Plant Patent, it focuses on the two most common patent types (Design and Utility) to help you best understand which you need.
Utility Patent
The utility patent is the most common patent. It protects “the creation of a new or improved—and useful—process, machine, article of manufacture, or composition of matter.” It covers the functional features in addition to the use of an invention. Only the patent owner can sell their idea, make, or use the article protected by the patent.
Design Patent
Design patents protect the visual features of an invention. This patent is needed when an inventor develops a new original ornamental design for the appearance of a manufactured item.
Plant Patent
Plant patents apply to organic matter, including living plant organisms, macro-fungi, and algae. It excludes bacteria. The United States Patent and Trademark Office may grant plant patents to those that have “invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state.”
Utility vs. Design Patents
If you’re looking for the difference between utility and design patent, you’re in the right place. A Utility patent protects the invention’s functional aspects and inner workings of the product. To qualify for a utility patent, your idea must fit into one of these categories:
- Articles of manufacture, which have few or no moving parts (such as a bobby pin).
- Machines, which are commonly composed of moving parts.
- A process, such as steps to do business or software.
- Composition of matter, where materials are compounded for something new, like cleaning products or man-made pharmaceuticals.
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Design patents apply to an original ornamental design for an article of manufacture. A design patent protects appearance of the the finished product, and possibly the components of the product. The Apple iPhone and the Coca-Cola bottle are widely known examples of products protected by design patents.
Click “Play” and turn up the sound on the video below for more information on the differences between Utility and Design Patents. Keep reading below for another video
“What are the Pros and Cons of a Utility Patent?”
When an inventor secures a utility patent, they have solid legal protection for their product. A utility patent gives the inventor a financial advantage and can potentially lead to market control of their product. Obtaining this patent may also help attract investors.
The tedious legalities of applying for a utility patent make pursuing a patent expensive. In addition, the process does not end when the patent is approved. It is the patent holder’s responsibility to manage ongoing maintenance fees and continuous protection from competitors’ infringements.
“What is the Utility Patent Application Process?”
Applying for a utility patent requires preparing very detailed and highly technical descriptions about the particular parts of the invention. The application must also include detailed explanations about making and using the invention.
Next, the application is submitted to the United States Patent and Trademark office for evaluation. On average, a utility patent takes about two years to obtain, and it may take longer if there is a rejection and appeal.
Once a utility patent application is approved and issued, it lasts for up to 20 from the date it is filed years with proper maintenance. The maintenance process includes periodic updates of information, along with fees and forms. Patent holders must submit these fees and forms by their filing date or risk losing their patent protection.
“What are the Pros and Cons of a Design Patent?”
Design patent applications have a higher approval rate than utility patent applications. Design patent applications also take less time to process. With a design patent’s speed and lower cost of obtaining a design patent, multiple design patents are often acquired for the same product.
Unfortunately, a design patent has a limited capacity of what it can protect. A competitor can make their idea look slightly different in design, without infringing on the patent.
“What is the Design Patent Application Process?”
Applying for a design patent is similar to a utility patent. It requires application, the examination, the response, and potential reconsideration done through the United States Patent and Trademark Office. However, design patent applications do not require detailed technical explanations and are much easier to prepare.
On the other hand, the utility patent approval process takes nine to 14 months from start to finish. With a 15 years term starting from the date of grant, a design patent’s lifespan is shorter than utility… And are not eligible for renewal.
“What are the Costs of Different Patents?”
Utility patents are more costly than design patents, because they are more complicated and have a higher rejection rate. Patent owners also have ongoing costs associated with maintaining the patent.
A utility patent application process includes several options for filing depending on the type of invention for which a patent is sought. The cost for a utility patent is dependent on how complex the application is, with an average approaching $10,000
The average cost of a design patent is about half as much, and similarly increases depending on the complexity and potential challenges. These averages include estimated attorney fees which will vary from firm to firm.
“Will I Get Rejected?”
Patent applications, especially utility patents, are often rejected. Almost 90% of patent applications receive a rejection with their first office action. About 50-60% of patents are approved, meaning about half of the applications receive approvals after initially receiving a rejection.
After a rejection is received, a patent applicant can follow the proper steps for reapplication. Applicants can do this with an attorney, and by following the reapplication steps of the patent office. Applicants also need to strengthen their applications during this process. This can be done by understanding why their patent was rejected, and making improvements on those points.
What Do Utility and Design Patents Protect?
What a design or utility patent protects depends on the patent’s claim scope. From this claim scope, it is possible to determine if other ideas infringe upon a patent.
Claim Scope
A patent’s claim scope defines what part of an invention the patent covers. The claim scope varies with each patent type. Clearly defining specific useful aspects or identifying ornamental features is critical for each application.
After patent approval, understanding the approved patent’s claim scope will help the patent owner identify and challenge infringements.
Determining Infringement
A patent infringement occurs when someone produces, sells, imports, or uses something that falls within the scope of a patent without the patent owner’s consent.
If patent owners believe an infringement has occurred, they must seek legal counsel with an expert in patent law. Infringement cases are decided in Federal court, where the patent is analyzed. In addition, the patent owner must show how the infringer violated the patent claim scope of their patent. Finally, the defendant will attempt to show how their product falls outside of the claim scope of the particular patent in question.
The patent owner will have to prove specifically how the infringement applies to their patent, proving the competing product duplicates the useful function or design protected under the scope of their patent.
Do I Need a Utility or Design patent
The first step in applying for a patent is determining which type of patent is needed. A utility patent is for your best choice if you are concerned about competitors duplicating your invention. This could be duplicating the way the product works, or how the product is used. A design patent is right for you if your intention is to protect the appearance of your product. Often, inventors and savvy entrepreneurs find that it is best to apply for both utility and design patents.
The decision to apply for a utility and/or a design patent typically comes during a patent evaluation – It’s the first place to start.
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“What is the Patent Evaluation Process?”
We find this to be a very critical first step that most patent attorneys overlook. We begin with this signature step so we don’t waste your valuable time and resources on a patent you may not need. Also, it ensures your business goals are aligned with our research.
Patent evaluations give the Goldstein Team a chance to collect the right information about your idea. We use this information to inform our research, which in turn helps us to recommend the best course of action for you. We take the time to learn as much as possible about your idea and your goals. Then we guide you through the types and intellectual property ownership and protection can help you achieve those goals.
We recognize your situation, motivations, and goals are unique. Our patent evaluation helps us understand the nuances of your situation so that together we can develop an appropriate strategy.
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While intellectual property protection might be difficult and confusing, we patiently listen to you, help you understand all your options, and then follow the best path to protect your valuable idea.
