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Types of Patents

The type of patent you should file for depends on what you are inventing. The vast majority of patent applications are for utility patents, but read below to find out if you should file for a design patent or a plant patent.

The United States Patent and Trademark Office (USPTO) grants three different types of patents (1) utility, (2) design, and (3) plant. In 2020 the USPTO received 646,244 total patent applications. Approximately 93% of those applications were utility, 7% design, and less than 1% filed for plant patents.

What Are the Different Types of Patents?

Each type of patent grants different protections for the invention and has varying application requirements. Each type of patent requires a separate application be filed. It is important for an inventor to understand the different types of patents and how they relate to the invention.

An inventor may choose to apply for multiple different types and/or multiple of the same type of patents to protect the invention. An inventor may protect different aspects of their invention with different types of patents. An understanding of the differences in patent types is crucial to ensure your invention is properly protected.

Take for example the case where a person invents a new device that has two functions. They may choose to apply for two utility patents and a design patent. Each utility patent would cover a different function of the device, and the design patent would cover the appearance of the device.

Utility Patents

Utility patents protect the function or use of an invention. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.

A utility patent is what one generally thinks of as an invention and must offer some functional benefit or solve a problem. Utility patents have a maximum life of 20 years after the date of application.

After receiving a utility patent, the owner must pay maintenance fees to keep it valid and enforceable. Provisional patent applications may be filed for utility patents.

Design Patents

Design patents protect the appearance of an object. Design patents are granted to anyone who invents a new, original, and ornamental design for an article of manufacture.

The protections afforded to a design patent only extend to the appearance of the design and not to any functional aspects of the design. A design patent has a maximum life of 15 years after the date of application.

A design patent can be filed for any new design and does not have to be related to a utility patent. You may get a design patent for coming up with a new design for a pencil. You may get a design patent covering the appearance of an invention also covered by a separate utility patent.

Plant Patents

Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Prior to the Plant Patent Act people could not patent plants because they did not “invent” the new plant. To encourage horticulturist to develop new plant varieties, a plant patent can be awarded for any new variety once it is asexually reproduced.

Plant patents have a maximum life of 20 years.

Plant patents cannot be filed for tubers (ie. potatoes) or for plants in an uncultivated state. You cannot get a patent for a new species you discover in a forest. You can get a patent for a new species discovered on a farm or garden.

Patent Examples

The following table provides examples of each type of patent.

Type of PatentPatent Examples
Utility Patents
  • Computer software
  • Chemical compound
  • Genetically modified organism
  • Medical device
Design Patents
  • A font
  • The shape of a water bottle
  • The style of a handbag
Plant Patents
  • Cross breeding a tulip plant
  • Cropping a new pineapple variety
  • Developing a seedless mango

Provisional Patent vs Patent

A standard utility patent application is referred to as a nonprovisional patent application. A provisional application can be thought of as a placeholder in line for the nonprovisional. A provisional patent does not offer patent protections unless a nonprovisional is also filed.

An applicant has one year to file a nonprovisional application after the provisional has been filed. The nonprovisional application is then treated as if it were filed on the date the provisional was filed. This date is known as the effective filing date. Any publicly available information (prior art) published after the effective filing date cannot be used to prevent the nonprovisional application from being granted.

A provisional patent application includes a complete description of the invention and drawings. It does not include claims. Patent claims define what is protected by the patent. Claims must be drafted very accurately to ensure the patent protects the entire invention.

Provisional applications are used to secure an earlier effective filing date for nonprovisional applications, while the claims are being drafted. A provisional patent also gives the applicant the legal right to say their invention is “patent pending.”

Which Type of Patent Is Right for You?

Deciding what type of patent is right to protect your invention depends on what your invention is. Define your invention. Ask yourself if your invention offers some use or functionality, is it a new aesthetic appearance, or is it a plant.

The same invention can be covered by multiple different types of patents. Take for example the case in which you genetically modify an orange tree, so it produces citrus fruits twice as big, has star shaped leaves, and you asexually reproduce it. You may possibly be able to file the following patents.

  • A utility patent on the process of genetically modifying an orange tree this way.
  • A utility patent on the final product of an orange tree with larger fruit.
  • A plant patent on the orange tree.
  • A design patent for the star shaped leaves.

The USPTO provides guidance on their website of what is considered a utility, design, and plant patent, but they will not advise you on which patent to file for your invention. Seeking the advice of a patent attorney is always recommended. A patent attorney will be able to determine which type of patent is best suited to protect your invention.

Sheldon Brown

Sheldon received his training of the patent system at the United States Patent & Trademark Office. He works with universities and consultants to provide analytics and guidance for technology commercialization from patents.

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Sources:

  1. USPTO (2022, February 11) U.S. Patent Statistics Chart Calendar Years 1963 - 2020. Retrieved from https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm