What’s the Difference?
Did you know there are two main types of patents? Patents are either utility patents (what someone is usually referring to when they say “patents”) or design patents. The United States Patent and Trademark Office (USPTO) gives us a brief definition of utility patents vs. design patents, but let’s look at the details so you can better assess which type of patent may be right for you.
What is a utility patent?
Approximately 90% of the patents issued by the USPTO are utility patents. So generally, when someone is referring to a patent, they mean a utility patent.
The USPTO defines utility patents as patents that are “[i]ssued for the invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof, it generally permits its owner to exclude others from making, using, or selling the invention.”
This type of patent comes with qualifications for what is and is not “patentable.” (See previous post, “Patentability.”) If the “new and useful” invention clears the hurdles previously discussed, then you’re likely on the road to being the proud owner of a utility patent.
What are examples of a utility patent?
Inventions that fit a utility patent include many tools used today. They also can include many newer drugs on the market.
How long do utility patents last?
Utility patents may last up to 20 years, but the length of the life of the patent after the first three years is dependent upon the patent owner’s payment of maintenance fees to the USPTO at various timeframes throughout the patent’s lifespan. This is very important. If these fees are not paid, the patent protection will expire prior to the twenty-year anniversary from the date of issuance.
What is a design patent?
The design patent specifically protects the way something appears, as opposed to the utility patent that protects the functionality of the invention.
The USPTO states design patents are “[i]ssued for a new, original, and ornamental design embodied in or applied to an article of manufacture, [that] permits its owner to exclude others from making, using, or selling the design.”
One famous example of design patents would be those obtained by Coca-Cola for its various iterations of bottles throughout the years. The first design patent on this bottle shape was obtained by the company from the USPTO in 1923 (see the Coca-Cola bottle design patent below). The company has sought – and been granted – various design patents for its bottle presentations ever since.
Unlike the many claims contained in a utility patent, a design patent may only contain one claim: a description of the article itself. For example, the Coca-Cola bottle below would be described in words, in the Claim section of the design patent.
Do design patents only protect the artwork?
While they do protect the appearance of an object, design patents are not to be used to protect mere artwork. The “art” must be an “ornamental design embodied in or applied to an article of manufacture,” meaning the design being protected MUST be in use with a product – such as the Coca-Cola bottle being used to contain the beverage being sold. A painting, therefore, is not eligible for design patent protection.
The product contained in the design being patented, such as the Coca-Cola beverage itself, does not necessarily need to be patented or even eligible for utility patent protection.
How long do design patents last?
Another difference between design and utility patents is that design patents require no payment of maintenance fees once they are issued by the USPTO, but these patents only have a lifespan of fifteen years from the date that they are issued, meaning they are of shorter duration than a utility patent’s potential lifespan.
In today’s high-tech “smart” world, it’s increasingly common that a product such as the iPhone contains both inventions protected by utility patents (e.g., the hardware inside the phone) AND design patents (e.g., the appearance of the iPhone).
Indeed, you may have an invention eligible for utility patent protection and also eligible for design patent protection due to the distinctive appearance of the product. It is best to discuss these finer aspects of your invention with a patent attorney, because the differences in the two types of protection can be critical to maximizing the protection of your invention.
At Sand, Sebolt and Wernow, we are experts in all kinds of patent protection. Contact us today.