NAJAFI LAW, P.A.
Patents · Trademarks · Copyrights
UTILITY PATENT
vs.
DESIGN PATENT
A patent for an invention grants a patent owner legal ownership rights for his/her invention. Once a patent has been obtained, an invention may not be lawfully manufactured, copied, used, sold or imported into the United States without the inventors consent.
The patent laws provide for the granting of patents in three major categories:
utility patents, design patents and plant patents.
UTILITY PATENT
Protects the "structural and functional" aspects of an invention and is normally applied for in those instances where it is desired to protect how an invention is made (its structure or composition), or how it works, or how it is used.
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Patent term of 20 years after filing date.
USPTO requires maintenance fees.
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The utility patent can be issued to any person who invents a new, useful, and non obvious:
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(1) Process
Refers to any process or method.
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(2) Machine
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(3) Manufactured Article
Articles or substances that are made.
(4) Composition of Matter
Chemical compositions and may include mixtures of food ingredients in recipes, as well as new chemical compounds
(5) Upgrades
New and useful improvement to any of such inventions.
DESIGN PATENT
Strictly directed to protecting the overall appearance and decorative aspects of an invention.
It can be granted for a new, original and ornamental design of an article of manufacture.
Patent term of 15 years from issue date.
USPTO does not require maintenance fees.
Will not include:
Protective coverage for the structural and functional aspects of an invention. Design patents are appropriate for certain inventions, but not all.
For example...
Recipes do not qualify for design patent protection. However, a food container or packaging for a food product may qualify for design patent protection. Similarly, the actual shape and appearance of the food product itself might be design patentable.
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Questions?
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Most inventions fall into the utility and design categories.
In most cases, it is better to pursue utility patent protection since protecting the function and structure of an invention is preferable over protecting the appearance.
Can you file for a design and utility patent?
When broad utility patent protection may not be available, or if the appearance of an invention is more important than its function, design patent protection may be the best choice. There are also those situations where it may be appropriate to seek both utility and design patents for an invention. More specifically, an inventor may feel that both "function" and "appearance" are important.
When this occurs, the inventor may choose to file both design and utility patent applications for the same invention.
You may still file for utility patent application provided you do so within one year of your design application filing date.
Your own use and sale of the invention for more than a year before your patent application is filed will "bar" your right to obtain a patent just as effectively as though this use and sale had been done by someone else. Additionally, any sale, publication, or disclosure of the invention prior to filing a United States patent application will destroy the possibility of obtaining foreign patent protection in most foreign countries.