Key Takeaways

  • The main types of patents are utility, design, and plant patents, each protecting different aspects of an invention.
  • Provisional, continuation, divisional, and reissue patent applications offer strategic benefits for inventors.
  • Knowing the correct type of patent is critical for enforceability and long-term protection.
  • Business method, software, and combination patents (e.g., design + utility) may be relevant depending on the invention.
  • Maintenance fees and international patent rights should be factored into long-term IP planning.
  • Mistakes such as filing the wrong patent type or missing the one-year public use window can jeopardize rights.

What Are the Different Types of Patents? 

  • Utility patents: These are patents that cover how a product or process functions. For instance, you can get a utility patent to cover your new hair dryer invention. Utility patents last for 20 years.
  • Design patents: A design patent covers how a product looks. It has nothing to do with the product's usefulness, but you can only get a design patent for a useful product or process. Design patents last for 14 years.
  • Plant patents: If you create a new species of plant, a plant patent prevents other people or companies from breeding it. Like utility patents, they last for 20 years.

The most common types of patents include design (how a product looks), utility (how a product functions), and plant (new plant species) patents. Other types of patents include provisional patents and reissue patents.

You can also get a software patent. This type of patent covers how a computer process works and its desired results. Patent eligibility for software lacks formal definition, so you might need a patent attorney to help decide if your invention is patentable.

There are two types of utility patents:

  • Provisional patent: This patent gives you more time to fully create your regular patent. After you receive a provisional patent, you can call your invention "patent pending." You have 12 months to file a regular patent application (RPA) after you receive your provisional patent. The cost of a provisional patent can vary greatly. A small company can file their own provisional for around $100. While a much more involved application with great detail can cost several thousand dollars.
  • Regular utility patent: This is the actual patent that remains in effect for 20 years. When you receive a regular utility patent, your invention moves from being patent pending to being patented. When the patent expires, you can pay maintenance fees to reinstate it.

You'll also find different types of patent applications, including the following:

  • Reissue application: You must file a reissue application if your existing and unexpired patent becomes invalid or defective for some reason. This application should contain the same scope of information as the original patent.
  • Divisional application: A patent examiner from the U.S. Patent and Trademark Office (USPTO) can ask for a divisional application if an invention includes more than one patentable part. Each patent application must cover just one invention.
  • Continuation application: If you need to add new matter to a patent that hasn't been abandoned or approved, you can submit a continuation application. It allows the patent examiner to take new information into account.  There are strict rules against the addition of "new matter". The rules pertain to circumstance when a person attempts to add new matter to a patent application that was already filed.  Adding new material as well as new information when you are filing your application is completely acceptable.  You will be given an updated filing priority date when the continuation-in-part patent application is filed. The new date will only apply to the new matter. A continuation-in-part application is a patent application filed during the lifetime of an earlier non-provisional application, repeating some substantial portion or all of the earlier non-provisional application and adding matter not disclosed in the said earlier non-provisional application. If any rejections exist for a non-provisional application, filing a continuation-in-part doesn't assume that the applicant is complying or accepting those rejections. The continuation-in-part has nothing to do with anything related to any denials of the initial non-provisional application.

Each type of patent has its own set of requirements. After you file your patent application, the USPTO will assign a patent examiner. He or she reviews your application forms and compares them against current patents.

Utility patents are the most common type of patent. However, design patents prove cheaper to get, so inventors often start with them.

Business Method and Software Patents

Some inventions—especially in finance, e-commerce, or tech—fall under business method patents, a subset of utility patents. These cover novel ways of doing business, such as online transaction systems or financial algorithms. While they must meet the same requirements of novelty, usefulness, and non-obviousness, the USPTO often scrutinizes them more rigorously, especially regarding abstract ideas.

Similarly, software patents protect specific processes or methods executed by a computer. While controversial and subject to evolving legal standards, software-related inventions can be patented if they demonstrate a technological improvement and are not merely abstract ideas implemented on a computer.

Why Do You Need to Know the Different Types of Patents?

If you want to protect an invention, you need a patent. Otherwise, someone else can make the same product and sell it. A patent protects intellectual property. It also allows inventors to create unique new products and processes, which can help boost the economy.

However, since different types of patents exist, you'll need to know which type to file. If you file a design patent application for a product's usefulness, the USPTO will deny the application. Often times, a utility patent and a design patent are enough to provide the necessary patent protection. Filing both a utility patent and a design patent application could prove beneficial if your invention is unique in its structure and its function in addition to being a one of a kind design.  The added benefit is that a utility and a design patent application will mark your invention as "patent pending" at the Patent Office.   You are urged to discuss the path that best suits your particular situation prior to moving forward.

You also need to know about the requirements for each type of patent:

  • Design patents: The USPTO grants design patents for designs that prove original, unique, and novel. The design must also apply to a product that consumers can use. For instance, you can't patent a painting or a sculpture that has no use. However, you can copyright those items.  While design patents are much easier to acquire, they are nearly impossible to enforce and they typically have no substantial worth.  Placing a design patent on file will cost around $1,000. You should additionally plan on around $2,500 to get through issuance.
  • Utility patents: You can get a utility patent as long as your product's usefulness is unique and non-obvious. The claim in the patent must relate to the way the product works. The cost of a utility application ranges from $7,000 to $10,000. These fees cover the search, draft and filing with the patent office. You should plan on an additional $10,000 - $15,000 to get through issuance.
  • Plant patents: The USPTO approves plant patents for plants that have never existed or been found before. The plant must reproduce asexually, and the new plant species must be unique. The fee to place a plant patents on file is roughly $1,000. Additionally, plan on another $2,500 or more through issuance.

The USPTO demands detailed information when you file for a patent. For instance, you must create drawings, usually in black ink, that illustrate an invention's design or utility. Other documents needed include the following:

  • Claim: Each patent needs a single claim. It should state the invention's purpose or unique design in simple words.
  • Title: Use common words to title a patent. Titles usually have just one or two words that consumers would recognize, such as "bench," "washing machine," or "belt."
  • Specification: The total written and illustrated contents of a patent application.
  • Cross reference: This document claims priority for your patent. You must list current patent applications.
  • Disclosure: If you used federal or sponsored money for your invention, you must let the USPTO know.
  • Background: You can write a simple description about how the invention came about.
  • Figures: Label your drawings with figure numbers. In a document, label each figure with simple wording.
  • Abstract: You can also offer a document that summarizes the whole application.

You must also learn what your patent protects. If you get a patent on your invention, you'll need to know how to defend it. If you know the types of patents and their definitions, you can do more detailed research.

Combination Patent Strategies

For inventions that are both functional and visually unique, a combination of utility and design patents can offer robust protection. For instance, a wearable device may warrant a utility patent for its technology and a design patent for its appearance. Holding both types strengthens enforcement options and can deter competitors from copying either aspect of the product.

When Should You File for a Patent?

You don't have to file for a patent, but you should if you want to protect your rights to your invention. If you decide you want a patent, you should file as quickly as you can. The USPTO issues patents based on the "first to file" standard. In other words, even if you created an invention first, if someone else files for a patent on the same invention before you, they will get the patent. 

Also, patent applications can take a long time to get approved. The average pendency is 28.1 months, though some patents get approved within as few as 18 months. 

When Should You Not File for a Patent?

If your invention won't qualify for a patent, don't waste time and money on filing. You can ask a patent lawyer to help you decide whether your invention meets the USPTO's standards. 

You might also want to delay filing for a patent if you're not sure your product can perform commercially. Many great ideas never lead to actual products on the market. You may not want to waste money on patenting an idea that you'll never use to make money.

Do a patent search before you file a patent, too. A patent search looks for other patents that might prove similar to your invention. You can hire a patent lawyer to do a patent search, or take the DIY approach.

Examples of the Types of Patents

  • Design patents: Apple has gotten patents for many of its products. For instance, the company has filed design patents for its unique iPhone.
  • Utility patents: The hula hoop serves as one of the most iconic products with a utility patent. The patent protects its unique purpose.
  • Plant patents: Several variations of the poinsettia plant have gotten patents.

Common Mistakes

Try to avoid the most common mistakes that deal with types of patents, including these:

  • Wrong patent: Don't file for a patent unless you're sure it's the right one. Ask a patent lawyer to help if you're at all confused.
  • Too many claims: You can only file a single claim with your patent application. You can get more than one patent for an invention, but each patent must cover a single part of that invention.
  • Broadness: Don't file for any type of patent if the descriptions are too broad. You might attract patent trolls, people who buy patents from other companies and sue other businesses for infringement.
  • Waiting to file: After you offer a product for sale, the USPTO gives you one year to file a provisional or non-provisional patent. If you wait longer, you can no longer get a patent for that invention.
  • Public use: The USPTO also sets limits for public use. If you display your invention, you have 12 months to file for a patent.
  • Poor application: Even if your application has merit, the USPTO might deny it because it doesn't have the right information. Always work with a patent lawyer or agent to make sure you submit a sound application.

Overlooking Patent Maintenance and International Rights

One mistake many inventors make is neglecting to plan for maintenance fees. Utility patents require periodic payments at 3.5, 7.5, and 11.5 years after issuance to remain in force. Missing these can lead to patent expiration.

Additionally, U.S. patents do not provide protection abroad. If international markets matter, consider filing under the Patent Cooperation Treaty (PCT) to streamline foreign applications, or file directly in key countries within 12 months of the original U.S. application to retain priority.

Why Patent Filings Can Be Complicated

Filing a patent is often complex because the U.S. Patent and Trademark Office (USPTO) requires extensive documentation to ensure the invention is new, useful, and non-obvious. This process not only protects the rights of the inventor submitting the application but also safeguards the rights of others who may have filed similar patents. The goal is to maintain fairness and accuracy in granting intellectual property rights.

Understanding Delays in the Patent Process

The patent-filing process can be lengthy due to the sheer volume of applications the USPTO receives. Patent examiners must conduct thorough reviews of each application, comparing them to existing patents and ensuring compliance with legal standards. This high demand, combined with limited review capacity, often results in a significant backlog. Filing early can increase your chances of faster review and approval.

Should Small Businesses File for Patents?

While patents can be valuable for small businesses looking to protect unique products or processes and secure market advantages, the cost and time investment may not always be feasible. Patents can strengthen a company's intellectual property portfolio but may strain limited resources. Small business owners should carefully assess the potential return on investment and consult a patent attorney to determine if filing is the right step for their business goals.

Steps to File

The steps you take to file a patent depend on the type of patent you need. Utility patents often need more documents and information. Design patents depend more on drawings than words.

You can file your patent electronically through the USPTO website, uspto.gov. It's the fastest way to get your information into the system. 

Frequently Asked Questions

1. What are the three main types of patents? Utility, design, and plant patents. Utility covers how inventions work, design covers appearance, and plant patents protect new asexually reproduced plant varieties.

2. Can you patent a software idea? Yes, but only if it’s more than an abstract idea. Software patents must demonstrate a specific, novel process or technological improvement.

3. What is a business method patent? A business method patent protects a new way of conducting business, often involving technology or software, and falls under the utility category.

4. What happens if I don’t pay maintenance fees? Failure to pay maintenance fees for a utility patent results in expiration, meaning the protection ends unless reinstated within a grace period.

5. Is one patent enough to protect my invention? Not always. Many inventors file both utility and design patents to protect both how their invention works and how it looks.

If you're ready to file a patent and you understand the different types of patents, start collecting information. Use an UpCounsel job posting to find a patent lawyer who can help you through the process.