As an innovator or creator, it is important to protect your work. In the rise of digital media, information is transported more and more quickly each day. Concepts and ideas are often shared and reposted, with no direct tie to the source. This phenomena does benefit the spread of knowledge, but unfortunately hurts the extremely important notion of being able to credit someone for their individual work and contributions to the greater good. Sometimes, the fear of having their work stolen leads many great minds to keep their special works hidden. Though secrecy is a valid and individual right, no one should feel ashamed to share their works with the world, if anything, they should be encouraged to do so. In order to promote the idea of freedom of expression, and support the entrepreneurial endeavors of individuals and businesses alike, a system exists that was created to allow innovators to protect their unique ideas, even if they are still in development or not fully formed. The initial step to be made when seeking to mark your work as the first of its kind, would be filing a utility patent.
The quote that says that “Form follows function” holds real value. In fact, the phrase has become a famous axiom in many career industries, but specifically found circulating readily in the world of architecture. We see this concept appear in many forms. For example, in the world of patents, form and function are actually the defining characteristics that separate two distinct types of patents. In this case, we will be analyzing the similarities and differences found between the commonly used, but often misunderstood concepts of utility patents and design patents.
Both utility and design patents provide valuable protections for patent owners, but there are significant distinctions between each contract, and the protection that is provided within it, for the person who has filed a utility patent application. In order to determine which patent will be the best suited for your invention will affect what your patent protects, how much the application process will cost, and when and whether the U.S. Patent and Trademark Office (USPTO) will issue your patent.
If you are an inventor or entrepreneur seeking the rights and protections a patent provides, here is what you need to know about utility and design patents, especially as it relates to patents that may involve the manufacture or composition of matter.
A utility patent protects the functional elements of an article; that is, how it is used and works. To obtain a utility patent, the invention must be “novel, non-obvious and useful.”
Those three terms have very specific meanings in patent law, and if your invention does not hit all those marks, the USPTO may deny your application for a utility patent.
- Novel: You cannot patent an invention that already exists. An article must not have been known or used by others before the inventor created it. However, improvements to an existing invention may be patentable.
- Non-Obvious: Even if an invention differs from an existing invention so that it is “novel,” a patent will not be issued if that difference is obvious “to a person having ordinary skill in the art to which the claimed invention pertains.” Determining whether an invention is obvious involves several complex factors and can be a very involved aspect of the patent prosecution process.
- Useful: You cannot obtain a patent for an item that doesn’t actually do anything. A claimed invention must have a “specific and substantial utility.”
Many patentable items will not only do something; but will look like something. A design patent protects what an article looks like, i.e., its unique exterior appearance, such as its shape, configuration, or surface ornamentation. For example, you could obtain a design patent for a new shoe tread, car design, or beverage container shape. The key for a design patent is that it relates to a visible, exterior aspect of the invention.
Other Key Differences Between Utility and Design Patents
Utility and design patents not only cover different aspects of an article, but the application process and protection each type of patent provides are distinct.
Typically, utility patents are much more difficult to obtain, and the USPTO’s review process of a utility application can take much longer than for a design application. The analysis involved in determining whether the functional aspects of an article satisfy all of the elements required for a utility patent includes a great deal of detailed, scientific, and technical analysis compared to reviewing an item’s ornamental appearance for a design patent.
That is why the typical pendency of a utility application is about two to three years, while the pendency of a design patent application is about one to two years.
Utility patents are valid for generally 20 years from the application filing date, while design patents are valid for generally 15 years from the date of patent issuance. And while a utility patent owner must pay periodic maintenance fees to prevent patent expiration, no additional maintenance fees are required to maintain a design patent.
Which Type of Patent Is Right for Your Invention?
You can apply for both a design and utility patent for an article if the invention’s novelty resides both in its utility and its ornamental appearance. Given the lengthier and costlier application process for utility patents, many inventors move forward with only a design patent application rather than deciding to try to tackle both concepts at one time. The best way to determine your patent prosecution strategy is to meet with an experienced patent attorney who can make the decision with you.
If you would like more information about utility and design patents, what exactly a patent examiner may be looking for when making the determination on whether or not to improve your patent, the best practices that should be held in mind when crafting patent drawings, specific niches of patents such as plant patents or would simple like to discuss applying for a patent for your new invention, we are here for you. Do not hesitate, and please contact the attorneys at The Dobrusin Law Firm.