Do You Know What Type Of Patent You Need To File?

Defining And Distinguishing "The Big 3" Patents: Utility, Design, & Plant Patents

A patent, which is a license issued by the government, gives an inventor a legal right to prevent others from using, selling or making the idea or design of the invention without explicit consent and permission.

Patents hold in a specific region (think your home country) and for a specific period of time, usually up to 20 years.

A patent confers the inventor a property right to the invention and a maintenance fee is sometimes payable.

A patent issued by the United States Patent and Trademark Office (USPTO) will only have legal ramifications within the borders and territories of the United States. Only under particular circumstances, the legal right of an invention may extend beyond the United States territories.

Patents give inventors and companies the incentive and protection to keep coming up with new and innovative ideas or products and ensure that they realize maximum profits from their invention.

There are three major kinds of patents: Utility patents, design patents, and plant patents. 

To apply for a patent, you need to understand what kind of patent your invention idea classifies as - it might not be as inherent as you think. When you're ready to look into filing your patent, we can help there as well.
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Utility Patents

Forming the bulk of the patent documents issued by the USPTO, the utility patent is issued to an inventor for the invention of an original and useful idea, process, design or product.

Utility patents are largely issued for 20 year periods. In short, the utility patent protects how the invention works and how it is used. It is commonly referred to as the “patent for invention,” because it covers major classes of inventions and it notably protects the distinct way an invention operates. 

Ideas which are improved upon can also fall under the utility patent category.

Utility patents legally prevent other inventors or manufacturing companies from replicating or making use of the invention or idea without prior permission of the inventor.
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Before an invention can qualify to be protected by the utility patent, it must be categorized as any of the following:

• Procedures, which include sequential steps and processes. Examples are manufacture procedures, computer software and business methods;
• Items of manufacture, generally including items that are useful, with little or no movable parts. Such items include bolts, nuts and pens;
• Machineries, which basically have movable parts. They include engines and other active machines like the computer;
• Matter compositions, including mixtures and compounds. Examples are drugs, synthetic macromolecules and other chemicals.

​Upon issuance, utility patents extends over a period of 20 years from the date of filing the patent application and the inventor is expected to pay a certain amount as maintenance fee over the period of the patent.

Design patents may also be required to protect the aesthetic values of an invention already protected by a utility patent.

Utility Patents: Costs & Fees

​All patents carry fees for filing, issuance and maintenance. The fees vary by size of your company or entity. For a complete listing, visit the USPTO fee section, but this should give you the basics of what you need to know about utility patents.

Get started with a utility patent

​Design Patents

​Inventions that have unique aesthetic values and qualities are protected under the design patent.

Often overlooked, the design patent is the least sought after of the three patents as they generally only protect how something looks; design patents are aesthetic.

​Obtaining a design patent is generally not difficult and it doesn’t take more than 12 months from the date of filing an application for it to be granted.

Although protecting an invention with a design patent is generally considered weak, the application process and the examination of the invention cost less (see patent fee schedule above).

Generally, a design patent only protects appearance and the way an invention looks. This kind of protection does not cover the structure or function of the invention itself.

Hence, if another manufacturer produces the same invention that looks differently from the patented product, they would not have infringed on the design patent of the first manufacturer.

That makes it quite easy for a competing inventor or company to make a similar product by just changing the physical appearance.

For a product or design to be granted a design patent, its configuration and surface ornamentation have to be unique and notable.

After being issued, a design patent only last for 14 years and cannot be renewed. Design patents, however, do not attract the periodic maintenance fees.

​With a design patent, other companies or inventors are legally barred from replicating the same design in their products.

Damages are awarded upon infringement of the design patent. A popular example of this is the large sum of money awarded in damages to Apple after Samsung was judged to have violated the design patent of the iPhone.
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Design patents are issued only for one invention or claim and having numerous designs will require the inventor to file for multiple applications except the differences between the designs are negligible. 
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Get started with a design patent

Dual-filing patents: Can you file utility and design patents together?

Although utility patents are the most common and widely issued, there are many situations where you would actually apply for - and want to have issued - a utility patent in conjunction with a design patent.

​What you want to keep in mind when thinking about your invention is, "Do I ultimately want to protect what it does or how it's used and what it looks like?"

If the answer is a pretty blatant yes, you should look into filing for both types of patents.

As another note, you are not required to file design patents and utility patents at the same time. You can do them in tandem, you can do them with years of separation - there are no hard and fast rules around that.

For example, if you've already filed a utility patent, you may apply for a "divisional design patent" that is based on your first application for a utility patent.
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Plant Patents

​A plant patent is issued when a new or a unique type of plant that can be reproduced asexually is discovered or invented.

Before such plant can qualify for this kind of patent, it must be have been discovered in a cultivated area, identical to the original and its reproduction was performed via methods other than the use of seeds.

These non-sexual methods include grafting and budding, root cutting or the use of bulbs.

Potatoes and other tuber plants are not patented.

Although bacteria are not patented, alga and fungi can be protected with the plant patent.

Apart from this, a plant patent will only be granted by the USPTO if the detailed drawing and full botanical classification of the invented or discovered plant is provide by the discoverer or inventor. These help elucidate the uniqueness of the new plant.
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The plant patent ensures that the invented or discovered plant cannot be used, sold or reproduced by another person for a period of 20 years from the date of submitting the application and the patent application is often made public 18 months after filing the application.

No maintenance fee is paid for this kind of patent.

The discoverer and the asexual reproducer of the new plant can both be named as inventors in a plant patent.

Similarly, if the invention or discovery was made by a group of people, each member of the group will be included as co-inventor. 

If you're looking to learn more about the invention process, check out our articles page or search below.

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