In this month’s blog, let’s discuss the two patents most commonly issued by the United States Patent and Trademark Office (USPTO), utility patents and design patents. We’ll delve into what category each patent protects and then determine the differences between them.
Utility patent
A utility patent is the patent people typically think of when discussing patents. The utility patent protects the way a process, machine, manufacture, composition of matter, or an improvement thereof is made and used; it protects the functional aspects of an invention.
Design patent
A design patent protects the aesthetics of an invention; it protects the way the invention looks.
Plant patent
A third category of patent, the plant patent, is distinctive from the other two and protects asexually reproducing, non-tuber propagating, cultivated plants. It is beyond the scope of this short blog.
Design patent distinctions
As mentioned, the design patent protects the look of an invention not the functionality of the invention. It makes a single claim to this end. The design patent has a lifespan of 15 years from the issue date. The design patent application can claim priority to an earlier filed patent application for a period of up to six months from the earlier application’s priority date* provided the prior application is not a provisional patent application.
*NOTE: The priority date of a patent application is the earliest date that a properly crafted application has been filed with a patent authority.
The feature of the invention that you wish to protect using a design patent cannot be dictated by the function of that feature.
- If the feature of the invention has to look the way it does in order to function properly, then you cannot get a design patent for that feature.
- You could, however, possibly get a utility patent for that inventive feature.
Utility patent distinctions
The utility patent is more elaborate than a design patent and also provides greater protection because it protects the functionality of your invention.
- The utility patent has a lifespan of 20 years from the priority date of the application (and up to 21 years if a provisional patent application was used). Though it must have at least one claim, there is no limit on how many claims it can have in total.
- A utility patent application can claim priority to an earlier filed application for up to a year from the earlier application’s priority date and may claim priority to a provisional patent application.
Because the utility patent and design patent protect different aspects of an invention, you MAY be eligible to protect your invention using both types of these patents. Many times this is not the case, however. In a future blog, I’ll talk about why you might choose one type of patent over the other type. If you’d like to learn more about patents, or get help in patenting an invention, please contact me at Bassett IP Strategies.
About the Author
Dave Bassett is President of Bassett IP Strategies. He can be contacted at dbassett@bassett.pro or (585) 739-9726. Dave has been registered with the USPTO since 2004.