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TYPES OF PATENTS

There are three types of patents awarded by the U.S. Patent and Trademark Office (“Patent Office”).



Utility Patents

A utility patent is the type of patent that is awarded to inventions that perform useful functions. Most of the patents that are issued are of this variety, and in fact most people who simply use the term "patent" are referring to a utility patent. When one of the other forms of patent are being referenced they are usually referred to not by reference to the term patent, but rather as a "plant patent" or "design patent."

Utility patents can be obtained for a thing (i.e., a product or composition), a method for making a thing, and/or a method for using a thing. Many times the news media will report that something that is quite old or well known has been recently patented. Almost always the old thing has not been patented, but rather a new and patentable method of making the thing or perhaps a new and patentable method for using the thing is what has been patented.

A utility patent, once granted, provides the owner of the patent the right to prevent others from making, using, selling and importing a product that is covered by the utility patent. This right extends for a period of time that is 20 years after the filing date of the patent application. Under some circumstances (i.e., when delay is the fault of the government) this time period may be extended. Extensions are rare, unless the patent covers a pharmaceutical product.

For general information:
For specific information in the the Manual of Patent Examining Procedures:
  • MPEP Chapter 600: Contents of Applications [ PDF ] [ HTML ]
  • MPEP Chapter 700: Examination of Applications [ PDF ] [ HTML ]
  • MPEP Chapter 2100: Patentability [ PDF ] [ HTML ]

Design Patents

A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture.

Design patents are last for only 14 years, are very weak and are appropriate only in limited circumstances. Nevertheless, design patents can be a useful tool in your intellectual property arsenal, particularly when you are attempting to create overlapping protection, thereby developing a true intellectual property portfolio. Having said this, it is important to know the limitations of design patents. Design patents do NOT protect an idea or an invention, but rather only protect ornamental design of exactly what is pictured. They are VERY easy to get, which is why many invention and idea companies push them on people, who unsuspectingly think they have broad protection of their idea or invention. Many patent professionals will refer to a design patent as a picture patent. This is helpful when understanding the limits of the protection. What is protected is only what is exactly pictured, nothing more, no matter how small the difference may be. Those who know patent law realize this is something of an exaggeration, but not by much. Do not rely only on design patents.

As with any general statement there are exceptions. The truth is that if you only have a design patent you will likely be dissatisfied with the strength of your protection. Design patents can, however, take on great strength when they are acquired in bulk (i.e., a significant number of design patents cover essentially identical variations of a single thing). If you have 30 or so design patents on similar variations you harness the power of a portfolio rather than relying on any single patent. If a competitor were to want to step in they would have to get around 30 weak patents, a task that is not very easy to do in many cases. Furthermore, although weak, design patents do give the owner the ability to use the coveted terms "patent pending" and "patent issued," as is appropriate. Some individuals are only interested in a design patent for this very marketing purpose. There is nothing wrong with this, and if that is why you want a design patent you will certainly get your money worth for the cost.

For general information:

For specific information in the the Manual of Patent Examining Procedures:

Plant Patents

Patents to plants which are stable and reproduced by asexual reproduction, and not a potato or other edible tuber reproduced plant, are provided for by Title 35 United States Code, Section 161 which states:

Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of title. (Amended September 3, 1954, 68 Stat. 1190).

The provisions of this title relating to patents for inventions shall apply to patents for plants, except as otherwise provided. This means that the plant patent must also satisfy the general requirements of patentability. The subject matter of the application would be a plant which developed or discovered by applicant, and which has been found stable by asexual reproduction. To be patentable, it would also be required:

  • That the plant was invented or discovered and, if discovered, that the discovery was made in a cultivated area.
  • That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke.
  • That the person or persons filing the application are those who actually invented the claimed plant; i.e., discovered or developed and identified or isolated the plant, and asexually reproduced the plant.
  • That the plant has not been sold or released in the United States of America more than one year prior to the date of the application.
  • That the plant has not been enabled to the public, i.e., by description in a printed publication in this country more than one year before the application for patent with an offer to sale; or by release or sale of the plant more than one year prior to application for patent.
  • That the plant be shown to differ from known, related plants by at least one distinguishing characteristic, which is more than a difference caused by growing conditions or fertility levels, etc.
  • The invention would not have been obvious to one skilled in the art at the time of invention by applicant.
A plant patent is granted by the government to an inventor (or the inventor's heirs or assigns) who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The grant, which lasts for 20 years from the date of filing the application, protects the inventor's right to exclude others from asexually reproducing, selling, or using the plant so reproduced.

For general information:
For specific information in the the Manual of Patent Examining Procedures:
  • Chapter 1600 - Plant Patents [ PDF ] [ HTML ]