Types of Patents: Everything You Need to KnowPatent Law ResourcesHow to Patent an IdeaProvisional PatentPatent PendingDesign PatentPlant PatentUtility Patent
The most common types of patents include design (how a product looks), utility (how a product functions), and plant (new plant species) patents.8 min read
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.
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.
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.
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.
Frequently Asked Questions
You might have questions about the different types of patents, such as these:
- Why are patent filings complicated?
The USPTO wants to help inventors protect their intellectual property. To do so, it needs as much information as possible. The USPTO needs to protect the inventor who files a patent as well as anyone else who has filed a similar patent.
- Why does the patent-filing process take so long?
The USPTO gets many applications each month. Examiners can only review so many in a given time period, which creates a backlog. Filing sooner will help you get your patent faster.
- Do small businesses need patents?
If you own a small business, you might want to hold off on patenting an invention for it. Small business patents can help protect your brand and market share, but they can also deplete your budget. Ask a patent lawyer to help you make these critical decisions.
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.
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.