Types of Patents

What are the different types of patents?

Patents have been the bedrock of innovation, powering the innovations of our early republic, through the Industrial Revolution and patents continue to play a big role in today’s technology improvements.

Over 10,000,000 patents have been issued by the United States Patent and Trademark Office, and over 400,000 are added yearly.

There are three different types of patents: utility patents (think Thomas Edison’s light bulb), design patents (that cover the shape or design of an object), and plant patents (for varieties of cultivated plants).

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Types of patents: utility patents, design patents, and plant patents

What can be patented?

What can be patented?  “Anything under the sun that is made by man.”

The key here is that it must be made by man.  Natural material, such as a soil in a jungle that is exceptionally good for growing crops is not patentable.  What would be patentable?  A way to artificially manufacture that soil as well as the man-made equivalent to that natural soil.

There are three different types of patents: utility patents (think Thomas Edison’s light bulb), design patents (that cover the shape or design of an object), and plant patents (for varieties of cultivated plants).

The general requirements for patents are that it is new (novel) and created by man.   

The US granted nearly 400,000 patents in FY 2020.

Utility Patents

Utility patents are the most popular type of patents.  These are the conventional patents on technologies from drugs and medical devices to new types of pillows and bedding, cell phone apps, processes for making fertilizer, and countless other things.  Utility patents cover the function of a product, and generally not its look or feel.

Utility patents cover composition of matter, such as new drug formulations, new types of plastics, or a new formulation for paint.

Utility patents cover processes, such as a new manufacturing process, a new method of use for an existing product, a new method for treating a disease, or a new computer algorithm.

Utility patents cover machines, such as cars, computers, printers, or a new automated window shade.

Utility patents cover “manufactures,” which means goods that are manufactured or made.  Examples are picks and shovels, a cell phone case, or a new type of paper.

What do Utility Patents Cost?

Utility patents cost about $40,000-60,000 on average.

Most of the cost of a Utility Patent is the cost of the attorney, with less than a quarter of the total cost being fees paid to the USPTO. 

How long do Utility Patents Last?

Utility patents expire 20 years from the earliest priority date, or 17 years from the date of issue, whichever is later.

The USPTO guarantees you will get at least 17 years of patent term to enforce your patent.  If you are diligent about responding to all the Patent Office’s requests, they will grant you Patent Term Adjustment to extend the life of your patent.

Are there Maintenance Fees for Utility Patents?

In the US, maintenance fees are due at 3.5, 7.5, and 11.5 years after the patent issues.

Design Patents

Design patents protect the “surface ornamentation” or shape of a product.  This can be an ornamental stripe on a container, the distinctive shape of a pharmaceutical pill, or the design of a new pair of glasses.  The design patent only protects the appearance of the object, not the functional elements.  If you are trying to protect the functional elements, you need a utility patent.

What do Design Patents Cost?

Design patents typically cost between $3000-6000.

Design patents rely on very precise and formal drawings of the product.  There are special requirements for showing surfaces, curves, and other features.  The drawings are old-school pen and ink drawings (although almost all are done on Computer Aided Design (CAD) systems these days).

Most of the cost of a design patent goes to the illustrator.

How long do Design Patents Last?

Design patents expire 15 years from the date of issue. 

Are there Maintenance Fees for Design Patents?

Design patents do not have any maintenance fees.

Plant Patents

Plant patents protect new and distinctive plants.  Plant patents are not available for tuber propagated plant (i.e. the Irish potato) or for plants found in an uncultivated state.  Plant patents are only available for plants that can be asexually reproduced.  Asexual reproduction means the plant is reproduced using grafting or cutting, rather than by seed.  Plant patents require asexual reproduction because it’s proof that the patent applicant can reproduce the plant.

What do Plant Patents Cost?

Plant patents typically cost between $5000-15000.

How long do Plant Patents Last?

Plant patents expire 20 years from the date of issue.

Are there Maintenance Fees for Plant Patents?

Plant patents do not have any maintenance fees.

Utility vs Design Patents

Design patents protect only the “look and feel” of a product, but not the function of the product.

For example, a cell phone case that has distinctive lines or decorative features might be protected with a design patent.  Suppose that the cell phone case had a specific function, like impact resistance, because of a bumper on the corner.  The function of the bumper might be protected with a utility patent.

In some products, like cell phone cases, certain features might have both a decorative aspect and a functional aspect.  These features might be protected with both a design patent and a utility patent.

One difference between a design and utility patent is that the design patent is a group of pen-and-ink drawings showing the product and a utility patent is mostly text describing the product. The utility patent might have many different versions of the product, while the design patent can have only one.

Although it is possible to combine the utility patent description and the design patent drawings into a combined patent application, this is very uncommon. Most practitioners file separate applications with separate drawings.

Grace Period for Utility Patents vs Design Patents

Utility patents have a one-year “grace” period, where you can wait up to a year to file your patent after publication or public disclosure.  This grace period is only in the United States, but most other countries have a pure novelty requirement.  In other words, there is no grace period: you must file the patent before public disclosure.

A key difference between utility patents and design patents is that the grace period for utility patents is one year (365 days), but the grace period for design patents is six months.

General Requirements for Patents

US patents are granted to inventors – human people – who create something new. 

Inventions cannot be found in nature.  For example, it is not an invention to merely discover a soil that has special properties that makes plants grow quickly.  However, if you figure out how to reproduce that soil using various ingredients, you can get a patent on that method to manufacture. And if you modify the formulation to be different from the natural version, you can get a patent on that composition of matter.

Similarly, a plant patent will not be granted for naturally occurring plants.  However, if you breed a strain of a plant, you can get a plant patent. For example: a new variety of rose with distinctive colors or a new pear tree with distinctive colored skin on the fruit.

How Many Patents Are Granted in the US?

Data from the USPTO Fiscal Year 2020 annual report on Performance and Accountability: FY 2020 United States Patent and Trademark Office – Performance and Accountability Report (uspto.gov)

Utility patents (FY 2020): 360,784

Reissue patents (FY 2020): 608

Plant patents (FY 2020): 1350

Design patents (FY 2020): 36,313