Is there any point in getting design patents?
The U.S. Patent and Trademark office issues primarily three different types of patents:
- Utility Patent – protects a “new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof.” A utility patent permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of patent application filing (subject to the payment of maintenance fees).
- Design Patent – protects a “new, original, and ornamental design embodied in or applied to an article of manufacture.” Similar to a utility patent, a design patent permits its owner to exclude others from making, using, or selling the design, but for a period of fifteen years from the date of patent grant. Design patents are not subject to the payment of maintenance fees.
- Plant Patent -protects a “new and distinct, invented or discovered asexually reproduced plant including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state.” A plant patent permits its owner to exclude others from making, using, or selling the plant for a period of up to twenty years from the date of patent application filing. Like design patents, plant patents are not subject to the payment of maintenance fees.
By far, the majority of patents issued by the USPTO are utility patents. The reason is that typically an inventor wants to protect the function of the invention when at all possible. By protecting the function, the appearance of the product doesn’t matter, and as a result, the patent will be stronger broader and more desirable to have.
However, there may be situations where the functionality of an invention is not new, but instead but it just looks different. This is where design patents come into play, as they protect the appearance of the invention. There may also be situations where you have something that is both functionally unique and also have a unique visual representation, in which case you may be able to obtain both a utility patent and a design patent for your invention.
While design patents are narrower than utility patents – they are often referred to as “picture patents,” as they only protect what is shown in the drawings — they still deserve to be considered. One reason is the current backlog at the USPTO, where it often takes three years or more to get a utility patent issued. A design patent, on the other hand, typically issues within a year, and is also considerably easier to prepare and file. It is however important not to skimp on professional patent illustrations, as they are the most important part of the patent. Design patents also let you use the labels “patent pending” and “patented,” which may be good for marketing purposes. The lack of maintenance fees also makes design patents an attractive alternative.
So when you talk to your patent professional, make sure to include design patents in the discussion. There are definitely situations in which they add value to your invention.
Mollborn Patents | Patent Protection Made Easy
Fredrik Mollborn has been helping companies protect their intellectual assets since 1997 in the U.S. and abroad. If you are looking to secure your intellectual property, reach out to Mollborn Patents for a consultation.