Officially, there are three types of patents. These are utility patents, design patents and plant patents.
Plant patents are only granted to inventors who have created and asexually reproduced a new plant variety. Accordingly, this type of patent applies only to a small number of inventions.
Utility and designs patents are far more common. How do you know which one you should apply for? That really depends upon the content of your invention. If you are unsure, then an intellectual property attorney can provide you with the guidance you require.
When people file a patent application in the U.S., they are nearly always seeking a utility patent. The subject matter of such an application may relate to a new product, machine or process. Alternatively, the subject matter may relate to a substantial improvement to an existing product, machine or process. This type of patent application includes a detailed description of the elements that make up the invention. It also includes "claims" that more particularly point out the subject matter that the inventor wishes to cover in the patent. Frequently, drawings that further describe the invention are included in the application.
Utility patents remain in force for a period of approximately 20 years. During this substantial time period, the patent owner has the right to prevent others from manufacturing, using or offering for sale any items that infringe on the inventor's rights. Utility patents cover broader subject matter than design patents, and the disclosure in the application can be quite detailed. This means that the inventor can obtain broader protection than he could with design patents.
While utility patents are intended to cover functional items, design patents cover the aesthetics of an existing product. The design must be distinctive and original. Typically, an inventor or designer will pursue such a patent when the appearance of the item is an important component of the distinctiveness and success of the product. Design patents only protect what is shown in the patent drawing. Accordingly, such a patent covers ornamental characteristics that may be applied to or are embodied in an item. This may include surface ornamentation or the configuration and shape of a product. The drawings in design patents also may show elements that are not being claimed as part of the design. These elements are illustrated in dotted lines to show that they are not being claimed.
It is far less expensive to pursue design protection when compared with utility protection. While a design patent lasts only for about 15 years, no periodic fees are required to keep design patents in force for the entire length of their term, which makes designs a far more affordable option. Typically, sizable maintenance fees must be paid to keep utility patents in force for their entire term. Additionally, it is far easier and quicker to obtain design patents than utility patents. Such a patent allows the owner to prevent others from making or selling a product with an infringing design.
Which type of patent protection is appropriate for your invention? If you have created a brand new product or process that the world has never seen before or if you have made a significant, material improvement in an existing product, then a utility application is the right choice. However, if your creation is a new "look" for an existing product, then design protection is the way to go. There also are instances in which you may want to file for both utility and design coverage. Schedule a consultation with an intellectual property attorney to determine which type of protection is right for your invention.
Author: Jeff Williams
Jeff Williams is an experienced mechanical engineer and lawyer that consults closely with clients in a strait forward and clear manner. He brings a particular set of strengths and unique perspectives to the firm.
Jeff received a B.S. in Mechanical Engineering from Arizona State University in 2005. He was an engineer for a number of years at a number of large corporations before pursuing his law degree. He graduated from Texas A&M University School of Law (formerly Texas Wesleyan University School of Law) with a J.D. in 2010. By combining his education and prior work experience into the field of intellectual property law, Jeff has developed key skills to fully assist clients.
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