Utility vs. Design Patent Protection
Let us start by looking at the at the different types of patents that are available – These are utility patents, design patents, and plant patents. Plant patents are very rare. As the name suggests, a plant patent is used to protect newly developed plants. My practice focuses on utility and design patents and these will be discussed below:
Utility Patents – The vast majority of new inventions should be protected with a utility patent. A utility patent protects the function of an invention. Utility patents are granted for any new, useful and non-obvious process, machine, manufactured article, or composition of matter. Patents are also granted for new and useful improvements to existing inventions.
How long does utility patent protection last? The term of a utility patent is 20 years from the date of filing. For twenty years, the inventor is given the power to exclude anyone from making, using, or selling his or her invention.
Design Patents – Unlike a utility patent, a design patent is not concerned with the function of an invention. A design patent protects the overall appearance of an invention and is granted for any new, original and ornamental design. The term of a design patent is shorter than that of a utility patent and is only valid for a term of 14 years from issuance. A design patent should only be chosen if the specific appearance of the invention is important. Otherwise utility patent protection should be sought.
There are a number of limitations inherent in design protection that inventors need to be aware of. These are set forth in detail in my posting entitled “Understanding the Limitations of a Design Patent” .