What Kind Of Patent Should I Pursue?Since 1790, the U.S. government has granted over 8 million patents.
Some, like the telephone, incandescent light bulb, copier and laser not only
enriched their inventors but changed the way we work and live. While many inventions
reflect humbler ideas, they are no less patentable.
Unbeknownst to many inventors, changes to U.S. Patent Law over the past 200-plus years are as
significant as the new technologies embodied in the millions of patents
Under U.S. patent law, three types or classes of patent
protection are available today - utility, design and
plant. While each has its subtleties, basically all three
The purpose of this article is
to give you a better handle on each patent class, and when (or
if) they should be used.
- Require novelty, usefulness and non-obviousness
- Exclude others from making, using, or selling the invention for a limited
- Allow manufacturers other than the patent owner to produce and sell the
product once its patent has expired
The Three Patent
1) Utility patent
most people use the word patent, they're usually referring to the
utility patent - the most commonly applied for and granted. Adding to the
confusion is legalese perpetrated by us lawyers. In addition to being called
utility patents, they're also known as full utility patents and
sometimes concept patents. They all refer to the same thing. Of the 3,500
U.S. patents awarded every week, the vast majority - over 3,000 - are utility
If it isn't confusing enough keeping track of three classes of
patents, you should also know the utility patent covers four categories of
inventions. To be granted a utility patent, inventions must fall within one of
Compared with the other classes of patents which
I'll get into, utility patents have very few disadvantages. But there are factors to consider: First, preparing the utility patent
application is time consuming. Next, rigorous requirements govern what you can include in the
application, although I consider these rules an advantage protecting the inventor.
Finally, long lead-time - typically two years or longer - exists from the
application filing to any patent award.
- Method or process - This can include a new business method, a
chemical process, a unique software program, or even a new cake recipe. It
covers anything that describes a process from A-Z.
- Apparatus - These are devices with moving parts such as ballpoint pens, sewing machines,
photocopiers, robots and, yes, mousetraps. Even if all components of a new device are off
the shelf, their combination could be new and therefore patentable.
- Article of manufacture - Usually if an item has no moving parts,
it's an article of manufacture. These range from wire paper clips to huge
sheets of metal formed into car roofs; plastic products also are fair game.
- Composition of matter - Inventions in this category range from
biotechnology, to pharmaceutical drugs, to film processing solutions and
baths. Inventions could be lower cholesterol butter, stronger glue, faster
pain relievers, or cleaning solutions made with orange peels, which by the way
is an ingredient used in real inventions.
Once granted, a full utility
patent remains in effect 20 years from the date the patent application was
filed, as long as all maintenance fees are paid. Patent filing fees change
periodically, at least bi-annually. And once a patent is issued, maintenance
fees (which you must pay to keep the patent in effect the entire 20 years) also
come into play.
As of March 2013, the basic filing fee for a utility
patent is $400 for a micro entity.
Sometimes confused with the utility patent, the design
patent is far more limited in usefulness. In addition to covering your invention
for only up to 14 years from the issue date, the design patent protects only
ornamental parts of an invention - its outward appearance - not its concept.
Unlike the utility patent, written applications for design patents
contain only a single claim. Since a single claim, dependent on drawings, can't
support separate designs, you must prepare and file separate design patent
applications for distinct designs.
Given a choice of filing a full
utility patent or a design patent, I almost never advise the design patent
route. However, nothing can stop you from filing both a design and utility
patent application on the same invention. That can sometimes be
a good idea since many inventions' appearances are novel, and a design patent
protects the design efforts put forth.
While more limited than the utility patent, the design patent has
differences some might consider advantages. For one, it's easier to prepare -
basically drawings with no descriptive text needed. And it's cheaper to file. As
of March 2013, the design patent filing fee for 14 years' protection is $190
for a micro entity, and no maintenance fees are required (yet).
Least used of the three patent classifications, the
plant patent protects new and living plant life. Adopted by the U.S. Congress in
1930 as a result of lobbying by horticulturist Luther Burbank, plant patent
law protects only plants that are asexually reproduced. That means plants
"reproduced by means other than from seeds, such as by the rooting of cuttings,
by layering, budding, grafting, inarching, etc.," according to the
If the plant came from a seed, its purity can't be
guaranteed - and it can't be patented. The majority of plant
patents are for roses, and the USPTO has granted about 24,000 plant patents
in the past 85 years. Typically patentable characteristics of asexually reproduced plants
include resistance to temperature and insects, and uniqueness in terms of color or fragrance, or in the case of edible plants, flavor. A plant patent expires 20 years from the patent
application's filing date, after which the invention becomes public domain.
Under a plant patent, the owner excludes others from asexually
reproducing the patented plant. However, others are not excluded from using or selling lawfully obtained plants. As of March 2013, the plant
patent application filing fee is $285 for a micro entity.
Putting It All Together
Patents don't last forever;
they weren't intended to. But as long as they're in effect only the owner has
the right to exclude others from making, using, selling, or marketing the
invention covered. And no matter which patent flavor you choose, they all give
you the right to label your invention Patent pending during the examination
process, and Patented when the patent is granted.
classification - utility, design, or plant - you go with, just remember that
filing for and getting a patent awarded puts the law on your side. That's not
trivial at all.
For more information:
Utility patents -
Design patents -
Plant patents -