In the world of invention and innovation, securing a patent can be the critical difference between success and missed opportunity. A patent not only safeguards your unique idea from being copied but also serves as a powerful asset for commercial growth. Understanding the types of patents available can help you make informed decisions and protect your intellectual property. Here is an overview of the different types of patents, with a focus on their unique characteristics and the protections they offer.
There are three main types of patents available in the United States, however, this article will explore some lesser-known types of patents as well.
Here are the main types of patents available in the USA:
- Utility Patents
- Design Patents
- Plant Patents
Utility patents are the most common type of patent and are granted for new and useful processes, machines, manufactures, or compositions of matter. This could include anything from software inventions to new chemicals. Typically, utility patents protect the way an article is used and works. Utility patents are incredibly beneficial as they prevent others from making, using, or selling the patented invention for a period of 20 years from the date of patent application filing, subject to the payment of maintenance fees.
Applying for a utility patent involves a thorough examination process at the patent office. An applicant must adequately describe the invention in writing and drawings and define the uniqueness of the invention. It’s also crucial to understand that the invention must be non-obvious, not just merely an improvement of an existing product or process.
These are the types of patents that people think of when they hear “invention”. It’s the type of invention that solves problems, and 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 are 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 are 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.
Design patents, on the other hand, are granted for new, original, and ornamental designs for an article of manufacture. In other words, design patents protect the unique visual qualities of a product. Unlike utility patents, design patents aren’t concerned with the functionality of the invention, but rather its aesthetic appeal. These patents are valid for 15 years from the date of grant and don’t require any maintenance fees.
The application for a design patent is comparatively simpler than a utility patent. However, it’s important to remember that the design must be inseparable from the article to which it is applied and cannot exist independently. Therefore, illustrations that accurately depict the design are a crucial part of the application process.
What is owned by an inventor with a granted design patent are the solid line drawings that represent the three-dimensional shape of the article of manufacture. The claim of invention IS the drawing, there are written claims.
These patents protect the way something looks and not 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
Plant patents are granted to individuals or corporations who invent or discover and asexually reproduce any distinct and new variety of plant. This includes invented or discovered seedlings, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state. The rights provided by plant patents discourage others from reproducing, selling, or using the patented plant for up to 20 years from the date of patent application filing.
The process of obtaining a plant patent involves stringent criteria. The plant must not only be a new variety, but must also have been asexually reproduced to demonstrate that it retains its distinguishing characteristics. Detailed descriptions and color photographs of the plant are typically necessary in the application process.
Plant patents are 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
Provisional Patent Application
A provisional patent application is not a formal patent, but rather a way for inventors to establish an early filing date for their invention, which can be beneficial in the patent process. It doesn’t require the formal patent claim, oath or declaration, or any information disclosure statement. Importantly, a provisional application provides the means to show the term “Patent Pending” in connection with your invention and is automatically abandoned 12 months after its filing date.
Following the provisional patent application, inventors have a year to assess the commercial viability of their product and decide whether to continue with a non-provisional patent application. This transition must be made within 12 months of the provisional application filing date to maintain the benefit of the provisional application filing date.
International patents are not truly international patents as there is no single international patent that is enforceable around the world. Instead, in order to have a patent in a non-US country, you have to apply for and get a patent granted by each country you wish to have patent protection in. A great way to save time is by filing a Patent Cooperation Treaty (PCT) application, which is a unified process for filing patent applications to protect inventions in many countries simultaneously. By filing one international patent application under the PCT, applicants can simultaneously have the patent search performed on behalf of all member countries, and lock in an early international filing date for which an eventual application may seek protection for an invention in a large number of countries.
The advantage of a PCT application is that it allows an inventor more time (30 or 31 months from the earliest claimed filing date) to decide the countries in which to pursue patent protection. This additional time can be used to evaluate the commercial potential of the invention in different countries and to arrange funding for the subsequent national applications. After the PCT process, you must still complete individual applications in each jurisdiction where you want the patent enforced.
Understanding the different types of patents and choosing the right one is a critical step in protecting your unique invention. It can dictate how well your invention is shielded and what your future commercial prospects might be.
Remember that the three main patent types include:
- Utility Patents
- Design Patents
- Plant Patents
As the patent landscape can be complex and often specific to individual cases, consulting with a patent attorney is highly recommended. The patent attorneys at Bold Patents can provide you with invaluable guidance, help you navigate the application process, and ultimately ensure that your intellectual property receives the most comprehensive protection possible. Schedule a free Discovery Call today with Bold Patents!