Tuesday, May 18 2021

The Difference between Utility, Design, and Plant Patents

by Traskbritt

Intellectual property is generally separated into different categories including patents, copyrights, trademarks, and trade secrets. U.S. patent law further divides patents into three different types: utility, design, and plant patents. Each type of patent serves a similar purpose of spurring innovation while protecting the ideas of inventors for a limited time. However, each type of patent covers distinct concepts of functionality, design, and botany.

Utility patents

Utility patents are the most common type of patent and are generally what people understand when they think of patents. A utility patent covers new and useful processes, machines, manufactures, formulas, compositions of matter, or new and useful improvements in any of these categories of inventions. Applicants who are granted a patent on their inventions may exclude others from making, selling, or using the invention for up to twenty years from the application filing date. 

Utility patent applications may be further broken down into two types – provisional and non-provisional. Provisional patent applications act as a placeholder to ensure priority before a complete non-provisional application can be filed, no more than one year later. As such, provisional patent applications are cheaper to prepare and file, but are not evaluated for patentability and do not afford patent protection without the subsequent filing of a non-provisional application. However, even the filing of a provisional application allows the applicant to mark their products with “patent pending.” 

Utility patents are generally more expensive than design or plant patents. For example, filing fees are greater for utility applications. Attorney’s fees are generally higher due to the increased complexity in the drafting and prosecution of the application. Furthermore, unlike design or plant patents, utility patents require maintenance fees to remain valid over the course of their enforceable term. However, utility patents generally provide broader protection than the other types of patents and may prove to be extremely valuable in preventing competitors from profiting off your hard-earned innovation. 

Design patents

As the name suggests, a design patent differs from a utility patent primarily in that it covers the ornamental design of an article instead of its functionality. Design patents also differ in the length of protection. A design patent provides protection for fifteen years from the issue date, rather than the utility patent’s twenty-year term from the filing date. However, similar to utility patents, the rights granted to the patent owner include preventing others from making, selling, or using the design without permission.

A design patent application is usually granted much faster than a utility application. While it may take more than 18 months to begin examination before the patent office on a utility patent application, a design patent may be examined, allowed, and issued in that same amount of time. This is likely due to the lower number of design applications and the lower complexity involved in evaluating the patentability of a design. A design patent is mostly comprised of illustrations with the examined claims of the design patent comprising the illustrations themselves. No written specification describing how the design works is necessary and no functionality is required. Purely functional designs cannot be protected through a design patent. If functionality is an element of a design, then the functionality should be described and claimed in a utility patent. 

Ultimately, the primary difference between utility and design patents is that a design patent protects the visual appearance of something while a utility patent covers the working, functional aspects of an article. 

Plant Patents

Plant patents are the rarest of the three types of patents due to their limited applicability. As the name suggests, plant patents are awarded for new and distinct, invented or discovered, asexually reproduced plants. Plants that can be patented include living plant organisms, cultivated sports, mutants, hybrids, and newfound seedlings. Tuber propagated plants, uncultivated plants, and bacteria are not patentable. Like utility patents, plant patents last up to twenty years from the filing date of the application and protect the patent owner’s ability to exclude others from asexually reproducing the plant, and from using or selling the patented plant. 

Patent-eligible plants include those that are reproduced by means other than from seeds, such as by the rooting of the cuttings, by layering, budding, grafting, inarching, etc. 

Which Type of Patent Is Right For You?

The most important factor in deciding which type of patent to pursue is whether you are more interested in protecting the functionality or the visual design of your product. Deciding which type of patent is right for you may still not be obvious, but the experienced attorneys at TraskBritt can help you obtain the best and most valuable protection for your invention. For any questions about patent protection and how to get started, contact one of TraskBritt’s registered patent attorneys today.