There are three main types of patents available in the United States. I’d like to explore some lesser-known types of patents as well in this article, too, though. This article should serve to inform and educate a novice, as well as challenge someone who has been there and done that in the patent world.
Here are the main types:
- Utility Patents
- Design Patents
- Plant Patents
These are the types of patents that people think of when they hear “invention”. It’s the type of invention that solves problems, makes life easier or more enjoyable. The “utility” aspect means that there is a functional benefit to what is claimed, and therefore what they have limited ownership of.
In essence, a utility patent gives the exclusive right to the inventor(s) and owner(s) of the patent to make, use, sell, and import their functional invention into the United States.
There are a LOT of rules regarding whether an invention is eligible for utility patent protection. And, that’s why I wrote a long-form article dedicated to patent eligibility. Here are the main types of inventions that ARE eligible:
- Compositions of Matter
Now, for utility patent applications, an inventor can submit what’s called a provisional patent application, which the United States Patent and Trademark Office (USPTO) will recognize as the priority date, for which any inventor who files their invention after you for the same subject matter will LOSE in a priority battle.
Highlights of Utility Patents:
- Protects functionality not design/shape
- Provides up to 20 years of exclusive rights
- You can benefit from Provisional filing
- Requires written claims and drawings
The beauty here is that you are not penalized for filing a provisional, as the 20 years doesn’t start until you file a nonprovisional (which must come no longer than 12 months after filing the provisional). See my blog article which goes into great detail about the differences between a provisional and nonprovisional.
You don’t have to file a provisional patent application, as the filing of a nonprovisional patent application will also serve as a priority date, but there are a lot of benefits to filing a provisional application including:
- Fewer formality requirements for specification and drawings
- Usually less costly as it requires less work
- Locks in the priority date
- Allows you to tout “patent pending” on your products/services
- You can test the market, begin selling and roll-up any changes into the nonprovisional filing within 1 year
Note, that a provisional patent application is not available for Design or Plant patents, as we will see below.
Here is an example of a utility patent 10,083,538:
You can see that it is a Utility patent from the very top right numbering, there is over 10 million, and there is no “D” or “PP” in front of it. Those would be for “Design” or “Plant” respectively (as discussed below).
Now the heart of a utility patent is the claims (this is what they actually own), which is located at the very bottom of the patent document. For this patent, here is claim 1 (See red highlighted area):
So, each of those sentences (or elements) of claim 1 must be present for someone to be infringing. I’ve written many articles on claims, but if you’re going to read just one, read the one on patent claim drafting.
Here is a look at what the drawings for a utility patent can/do look like:
You can see that the drawings are more of a functional flow diagram, and show how different (albeit numbered) components make up a system. Not all utility patents are shown in this manner, but I wanted to give you an idea that the drawings (especially for methods/systems claims) are often shown using diagrams.
These patents, protect the way something looks, as opposed to what it does. However, they are a bit more limited because they must be able to be built in 3D. Meaning, it must be an “article of manufacture” as the law states.
Design patents are completely opposite from utility patents, in that they do NOT protect the functionality of a 3D article, but instead protect the form, shape, relationships, surface textures, and design.
I have shown here an example patent in the same genre of virtual reality covering a design patent. You can tell the difference right away by looking at the patent number in the upper right.
The patent, US D815637 is shown below:
Aside from the red highlighted “D” patent number, you should also notice the green highlighted claim. Note, for Design Patents, the claims are not buried at the bottom, and are not nearly as detailed. In fact, it’s just one sentence long and everything is controlled in the drawings “as shown and described.”
Here is an example of what the drawings look like for a design patent:
Now, you can see that the shape and design takes center stage. As compared to the utility patents (where the focus is on the written claims), the focus here is on shape, contour, relationships, surfaces, etc.
You can see there are many lines that show shading and curvature on the virtual reality glasses. The more frequent the lines, the sharper the angle. You can also see (if you look closely) some lines are solid, and some are hashed (or dotted). The solid lines are the features that are claimed, the other lines are not claimed directly – and may actually take on different shapes/forms and STILL be protected.
I have written a blog article dedicated to design patent applications. Check that out for much more on what is entailed.
Some of the key features of design patents are as follows:
- There are no “provisional” design patent applications
- Protects design/shape/look as opposed to functional benefits
- Provides inventors 15 years of protection from the date of issuance
This is the last of the major types of patents available here in the US. Plant patents protect unique, non-obvious, asexually reproducible plant species. This means (just like utility and design patents) that the plant must be NEW, and the whole “asexually reproducible” part just means that it can be repeated and is akin to a lab-generated/human-created plant that does not rely on nature to grow.
The term “genetically modified” often means that there was human innovation behind the plant species and there was likely a plant patent or at very least a plant eligible for patenting behind it.
I’ve written a detailed blog article covering what exactly goes into a plant patent application, I encourage you to read it if you’d like to go deeper.
Let’s take a look at an example plant patent cover. PP25,874
You can see from the upper right corner of the patent cover sheet, the number “PP25,874” and the distinct “PP” identifies it as a Plant Patent. You can also see that there have only been 25,000 plant patents issued (as of 2015 when this was issued)…as compared to over 10,000,000 utility patents!! So, while they do give broad protection, they are FAR less utilized by the inventing community.
Note, the green-shaded box (Shown above). I wanted to point out that plant patents CAN reference back to a Provisional patent application, just like utility patents.
Another unique aspect of plant patents is the in-depth botanical descriptions that are required in order to fully explain the organic chemical/substance sufficiently. Here is an example of the hops from the patent cover shown above:
Lastly, you have to show an image of the leaves/foliage of the plant species you are seeking patent protection on. For this plant, they used the following images:
As opposed to design or utility patents, it is very routine to use actual photographs of the plant.
Here are some salient points about Plant patents:
- 20 years of protection from the nonprovisional filing date
- Requires photographs of the plant
- Requires a detailed botanical description
- Can gain benefit of priority back to Provisional application
Understanding the three major types of patents is very important to know as an inventor and business owner. Having a high-level understanding of these types will help you to identify and flag potential opportunities and risks as you innovate.
Remember that the three patent types include:
- Utility Patents
- Design Patents
- Plant Patents
As always, feel free to reach out to us with any questions/comments/suggestions you have for this or other blog articles you’d like to have us write on.