4 patent types and when to use each

Patents are useful tools for protecting your intellectual property for a set period. What most people don’t realize is that there are multiple patent types.

Each type of patent comes with specific protections, the time frame when it’s effective, and use cases.

In this guide, you’ll learn about the four major patent types, when they should be used, and even get a general overview of the application process.

What is a patent?

A patent can be considered a form of intellectual property that gives you the right to exclude, prevent from using, or limit access to an invention for a set period. In exchange, the methodology and process for creating the patent is published.

If anyone wants to use or otherwise access the technology contained in the patent, they must first seek the permission of the patent holder. Usually, the patent holder will require a fee for licensing the invention.

There are four major types of patents.

1. Utility patents
2. Design patents
3. Plant patents
4. Provisional patents

Let’s look at each one in turn.

Utility Patents

Utility patents, also known as “patents for invention,” are a type of intellectual property protection granted by a government to inventors or assignees. They provide exclusive rights to inventors for a limited period, typically 20 years from the filing date, to exclude others from making, using, selling, or importing their invention into the country where the patent is granted.

The scope of utility patents is broad and encompasses a wide range of inventions, including machines, processes, methods, compounds, and compositions of matter, that are new, useful, and non-obvious. Utility patents protect the utility or functionality of the invention rather than its ornamental or aesthetic aspects (which are protected by design patents).

When to Use the Utility Patent Type:

1. Protecting Novel Inventions and Discoveries:

Utility patents are ideal for protecting novel inventions, meaning they have not been previously known or publicly disclosed. They’re suitable for groundbreaking innovations and discoveries in various fields, including technology, medicine, engineering, and more.

This is the type of patent that most people think about when patents come up in conversation.

2. Practical Applications of Utility Patents:

Utility patents are used to safeguard inventions that have practical, functional applications and can provide a competitive advantage in the market. Inventions that involve new machinery, processes, chemical compounds, pharmaceuticals, or innovative methods can benefit from utility patent protection.

To be clear, it just needs to be new and different. Oftentimes, this can advance a field or industry but sometimes, it’s more about unique processes. For example, a unique method to enhance Google Ads campaign results or a new way to do document automation.

Utility Patent Application Process:

1. Requirements and Criteria:

To obtain a utility patent, an inventor must file a patent application with the relevant patent office, such as the United States Patent and Trademark Office (USPTO) in the United States.

The patent application must include a detailed description of the invention, including how it works and how it is made, as well as claims that define the specific elements or steps being protected.

The invention must meet the following criteria:

1. Novelty: The invention must be new and not disclosed to the public before the patent application.
2. Usefulness: The invention must have a practical use or utility.
3. Non-obviousness: The invention must not be an obvious combination of existing knowledge or technologies.
4. Examination and Approval:

After filing the patent application, it undergoes examination by the patent office. During examination, a patent examiner reviews the application to determine if the invention meets the patentability criteria.

The examiner may request additional information or clarification, and the applicant can respond with amendments or arguments to address any concerns raised.

If the patent office determines that the invention satisfies the requirements, a utility patent is granted, providing the inventor with exclusive rights to the invention for the specified period.

Once granted, the patent owner can enforce their rights by taking legal action against those who infringe on the patent.

It’s important to note that the patent application process can be complex and time-consuming, and it typically involves legal and technical expertise. Therefore, many inventors seek the assistance of patent attorneys or agents to navigate the process successfully and maximize the chances of obtaining a utility patent for their invention.

Design Patents

The design patent type is a type of intellectual property protection that focuses on the ornamental or aesthetic design of an article of manufacture, rather than its functionality. They grant the holder exclusive rights to the visual appearance of the design for a limited period, typically 15 years from the date of grant. Key characteristics of design patents include:

• Ornamental Focus: Design patents protect the unique, non-functional, and purely visual aspects of a product’s design, such as its shape, surface ornamentation, and configuration.
• Limited Duration: Design patents have a shorter duration compared to utility patents, typically 15 years, protecting the design’s aesthetic features during that time.
• Non-Obviousness: To obtain a design patent, the design must be non-obvious to a person skilled in the relevant field.

When to Use Design Patents:

1. Protecting the Ornamental Design of a Functional Item:

Design patents are appropriate when you want to protect the unique and non-functional visual features of a product or object. They are often used for consumer products, fashion items, packaging, and any other articles where the aesthetic appearance is a significant selling point.

For example, the design of a car such as the Bugatti can be patented. Likewise, if a drink manufacturer comes up with a new unique shape for their bottles, the design can be patented.

2. Examples of Design Patent Applications:
   • Protecting the unique design of a smartphone, tablet, or electronic device.
   • Safeguarding the ornamental design of a piece of jewelry, such as a ring or necklace.
   • Securing the distinctive design of a furniture item, such as a chair or table.
   • Preserving the appearance of a decorative bottle, container, or packaging.
   • Covering the surface ornamentation of a textile or fabric design.

Design Patent Application Process:

1. Requirements and Criteria:

Just like with utility patents, an application should be made to the relevant patent office such as the USPTO. The application should include drawings or illustrations that clearly depict the design from multiple angles and perspectives.

The design must meet the following criteria:

1. Novelty: The design must be new and not previously disclosed or publicly available.
2. Non-obviousness: The design should not be an obvious variation of prior designs in the same field.
3. Ornamental: The design must be primarily ornamental and non-functional.
4. Examination and Approval:

The design patent application undergoes examination by a patent examiner, who checks for compliance with patentability criteria. The examination process typically focuses on the visual distinctiveness and non-functional nature of the design.

If the application meets all requirements and is approved, the design patent is granted, and the patent holder gains exclusive rights to the design’s ornamental features for the specified period.

Design patents provide a valuable form of protection for designers and inventors looking to safeguard the unique and visually appealing aspects of their creations. They complement utility patents, which protect the functional aspects of inventions, and trademarks, which protect brand names and logos.

Plant Patents

Plant patents are a form of intellectual property protection granted to inventors or discoverers of new and distinct plant varieties that have been asexually reproduced. These patents provide exclusive rights to the patent holder, allowing them to control the propagation, sale, and use of the patented plant for a specified period, typically 20 years from the date of filing.

The scope of plant patents covers the specific cultivated plant variety, rather than the methods or processes used to cultivate it. This is the least common patent type out of the ones mentioned in this guide.

When to Use Plant Patents:

1. Protecting New and Distinct Plant Varieties:

Plant patents are used when an inventor or horticulturist has developed a new and distinct plant variety through asexual propagation methods, such as grafting or cloning.

They are applicable when the plant variety is novel, distinct from existing varieties, and has not been previously offered for sale or publicly disclosed.

2. Relevance in Agriculture and Horticulture:

Plant patents are particularly relevant in agriculture, horticulture, and the nursery industry, where the development of unique and desirable plant varieties is common.

They are used to protect ornamental plants, fruit and vegetable cultivars, and other plant types with distinctive characteristics that make them commercially valuable.

Plant Patent Application Process:

1. Requirements and Criteria:

Again, like with the utility patent and design patent, the first step is to submit a formal application to the patent office. The application should include a botanical description of the plant, along with clear and specific criteria for distinguishing the patented variety from existing varieties.

Key requirements for plant patents include:

1. Novelty: The plant variety must be new and distinct from existing varieties.
2. Asexually Reproduced: The plant must have been reproduced asexually, such as through cutting, grafting, or tissue culture.
3. Distinctiveness: The plant must exhibit unique and distinguishing characteristics, such as growth habits, flower color, fruit size, or disease resistance.
4. Examination and Approval:

A plant patent application undergoes examination by a plant examiner who assesses the plant’s distinctiveness and compliance with patentability criteria. The examiner may request additional information or evidence to substantiate the distinctiveness of the plant variety.

If the application meets all requirements and is approved, a plant patent is granted, and the patent holder gains exclusive rights to propagate, sell, and use the patented plant variety for the specified duration.

Plant patents are a valuable tool for plant breeders and horticulturists, allowing them to protect their investment in developing new and unique plant varieties. They encourage innovation in agriculture and horticulture by providing a period of exclusivity during which the patent holder can commercialize their plant variety without competition from others.

Provisional Patents

A provisional patent, often referred to as a provisional patent application, is a type of temporary, preliminary patent application filed with a patent office. Its primary purpose is to provide inventors with a simplified and cost-effective way to secure a priority date for their invention.

Unlike utility or design patents, provisional patents do not grant any enforceable patent rights on their own. Instead, they establish a filing date and give inventors a one-year window to file a non-provisional (utility) patent application claiming the benefit of the provisional application.

When to Use Provisional Patents:

1. Securing a Priority Date for an Invention:

Inventors can use provisional patents to establish an official filing date with the patent office, which is crucial in the context of patent law. This filing date becomes the priority date for the invention.

It’s beneficial when inventors want to stake their claim to an invention but may not be ready to file a complete and detailed non-provisional patent application.

2. Allowing Time for Further Development and Refinement:

Provisional patents are valuable when inventors need additional time to refine and develop their inventions, conduct market research, or seek potential investors or licensees.

They offer a 12-month “patent pending” status during which inventors can work on their invention without losing the opportunity to secure patent protection.

Provisional Patent Application Process:

1. Requirements and Criteria:
   • A provisional patent application typically includes a description of the invention, including drawings or diagrams if applicable. However, the level of detail required is less than that of a non-provisional application.
   • While provisional applications are less formal, they should still provide enough information to enable someone skilled in the field to understand the nature of the invention.
   • Importantly, a provisional application must contain a clear and concise written description of the invention, as well as any supporting materials that can help illustrate the invention.
2. Converting to Non-Provisional Patents:
   • Within the 12-month period following the provisional patent application filing date, inventors must file a non-provisional (utility) patent application that claims the benefit of the provisional application.
   • The non-provisional application should expand upon and provide all the necessary details and claims for the invention.
   • The priority date for the invention remains the date of the provisional application, allowing inventors to benefit from the earlier filing date for patent protection.

Provisional patents are a useful tool for inventors and businesses as they provide a flexible and cost-effective way to establish a priority date while allowing time for further development and refinement of inventions. However, it’s important to remember that provisional applications do not automatically lead to granted patents. You must follow up with a non-provisional application and meet all the necessary requirements to obtain patent protection for your inventions.

Comparing the Four Patent Types

Utility Patents:

• Protect functional and useful inventions, including machines, processes, and compositions of matter.
• Last for 20 years from the filing date.
• Require detailed descriptions and claims.
• Must meet criteria of novelty, usefulness, and non-obviousness.

Design Patents:

• Protect the ornamental or aesthetic design of an article of manufacture.
• Last for 15 years from the date of grant.
• Focus on the visual appearance rather than functionality.
• Must be new, non-obvious, and primarily ornamental.

Plant Patents:

• Protect new and distinct asexually reproduced plant varieties.
• Last for 20 years from the filing date.
• Require detailed botanical descriptions.
• Must be novel, non-obvious, and distinct.

Provisional Patents:

• Provide a temporary filing option to secure a priority date.
• Do not grant enforceable patent rights on their own.
• Last for 12 months and can be used as a basis for filing a non-provisional application.
• Require a less detailed description.

Factors Influencing the Choice of Patent Type:

The choice of patent type depends on several factors:

1. Nature of the Invention: The type of invention, whether it’s a machine, a unique plant variety, a novel design, or a process, will determine which patent type is appropriate.
2. Commercial Value: Consider the commercial potential of the invention. If it’s a groundbreaking technology with significant market potential, a utility patent may be more suitable. For aesthetically pleasing products, a design patent could be chosen.
3. Development Stage: Provisional patents are useful when an invention is still under development and not yet fully detailed. They allow inventors to secure a priority date while refining the invention.
4. Budget: Budget constraints may influence the choice of patent type. Provisional applications are often more cost-effective initially, but inventors must follow up with non-provisional applications.
5. Duration of Protection: Consider how long you want to protect your invention. Utility and plant patents typically offer 20 years of protection, while design patents provide 15 years.
6. Enforceability: Utility patents provide strong enforceable rights, making them suitable for protecting core innovations and technologies.

Balancing Protection and Cost Considerations:

Balancing protection and cost considerations is crucial in choosing the right patent type:

• For inventions with high commercial value and long-term potential, investing in a utility patent is often justified, even though it may involve higher costs and more extensive documentation.
• When budget constraints are a concern, provisional patents can provide initial protection while allowing for further development and securing additional funding.
• Design patents offer a balance between protecting the visual appearance of a product and cost, making them suitable for products where aesthetics are a key selling point.
• Plant patents are specific to new plant varieties and are used in agriculture and horticulture, where innovation can be highly valuable.

In summary, the choice of patent type depends on the nature of the invention, commercial considerations, development stage, budget, and desired duration of protection. Inventors and businesses should carefully assess these factors to select the most appropriate patent type for their specific needs. Consulting with a patent attorney or agent can provide valuable guidance in making this decision.

Conclusion

Patents are an important and powerful way to protect your work and profit from it for an extended period. With that being said, there are multiple patent types and each one has its requirements.

If the project is commercially viable then it may be a good idea for you to enlist the help of attorneys and other patent experts to guide you in the process. Of course, the first step is to determine the type of patent you need and get an estimate of the cost before moving forward. 

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