What Are the Different Types of Patents?

There are three types of patents that an inventor can obtain in the United States: a utility patent, a design patent and a plant patent. The type of patent with which most people are familiar is a utility patent, which is a patent for a new and useful invention. The subject matter for each of the three types of patents is discussed further below.

Utility Patents

In order to obtain a utility patent, the invention must be for a “new and useful process, machine, manufacture, or composition of matter . . . .” This requirement is fairly straightforward and is usually not a problem, except in certain areas.

A series of very vague, indefinite and often misleading maxims have arisen over time to address what may and may not be patented. For example, “mathematical algorithms,” “mental steps,” “laws of nature,” “products of nature,” “methods of doing business,” and “printed matter” have, in the past, been held to be not patentable. Patents are regularly issued that defy these maxims. For instance, purified products of nature are generally patentable, assuming that the other requirements of patentability are satisfied. In addition, computers and the Internet have now transformed methods of doing business and mathematical algorithms into protectable machines and processes.

Decisions by the Federal Circuit Court of Appeals favorable to patent applicants have caused the U.S. Patent and Trademark Office to rewrite and loosen its guidelines for examining patent applications for software inventions.

Medical procedures are patentable in the United States; however, the patentee’s ability to sue all infringers of a patent directed to a medical procedure has been curtailed by recent legislation. This legislation makes it even more important to consider likely defendants when drafting a patent claim. For instance, it is usually easier to sue the manufacturer of an infringing product than the consumers, so the patent should be drafted to cover the product as it leaves the factory—as opposed to how it may be used by the consumer—so as to avoid having to show the additional elements of contributory infringement. Many foreign countries limit the patentability of medical procedures.

Design Patents

Design patents have different subject matter requirements from utility patents, as set forth in 35 U.S.C. sec. 171, which reads as follows: “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.”

One difference between utility patents and design patents is the length of their terms. Utility patents generally have a term of twenty years from the earliest effective filing date—or seventeen years from issuance, depending on when they were filed. Design patents have a term of fourteen years from issuance. (More)

Patent Practice Tips

Many of the common pitfalls in the defense and enforcement of patent rights can be avoided through careful planning and early consultation with competent patent counsel. Although we assess the needs of each client individually, we find that the following practice pointers are applicable to most companies or individuals who create patentable inventions.

• “File early. File often.” Securing as early a filing date as possible might be critical in getting a patent and in preventing the competition from gaining a patent instead of you. Filing additional applications on variations of and developments on the original conception can result in broader and more robust patent protection.
• Set up a patent committee including heads of marketing, business development, engineering, and in-house legal department to work with patent counsel to develop a patent strategy that is implemented on a company-wide basis to advance your company’s business.
• To protect your investment in research and marketing, consider developing a multi-pronged approach to protecting your intellectual property, incorporating utility patents, design patents, copyrights, trademarks and/or trade secrets. Since there are differences between patents and other types of intellectual property, protecting all of one’s rights in a product line can be very valuable.
• Have written agreements signed by any employee or third party who may be inventing on your behalf. Otherwise, it may not be clear who owns the patent.
• Educate your co-inventors and employees as to why patents are important. Emphasize the importance of early and adequate documentation of developments, which should be considered promptly by a patent attorney or by the patent committee for possible patenting.
• Have searches performed to determine the novelty and the non-obviousness of inventions. In many industries, it is also prudent to learn of patents that may cover your product.
• Consult with a patent attorney early in the development process. A patent application may be filed before a prototype is built, and it is often prudent to file a patent application as quickly as possible.
• Use provisional patent applications to establish an early filing date. (More)