Not all patents are created equal. Utility, design, and plant patents plus the provisional application (don’t call it a provisional patent) are the 3.5 types available to inventors. Read on for details.
A utility patent protects the structure, function, or composition of an invention and is the most common type of patent in the U.S. Utility patents give the holder the exclusive right to stop others from making, using, selling, offering, to sell, or importing the invention in the United States. Utility patents last from their issue date to about the 20th anniversary of filing.
Utility applications contain a written description of how to make and use the invention and conclude with a series of numbered patent claims that define the legal boundaries of the patent.
Utility patents are used to protect machinery, processes, and chemical compounds.
For the past few years, around 600,000 non-provisional patent applications were filed each year. More than 90% of those were utility applications.
Design patents cover the appearance of a thing—the ornamentation, texture, shape, etc. Design patents last for a fixed term of 15 years from the issue date and give the holder the exclusive right to stop others from making, using, selling, offering, to sell, or importing the claimed design.
Design patents are made up of drawings or images of the design. A design patent is infringed if the accused product is “substantially the same” as the claimed design in light of the prior art, from the perspective of an ordinary observer.
A patented design can contain both ornamental and functional characteristics, but it cannot contain a design that is dictated by the function of the article.
Around 8.5% of all non-provisional patent applications in the U.S. are design applications.
Plant patents covers new breeds of asexually reproduced plants and are largely the same as a utility patent —except perhaps the subject matter.
Fewer than 0.2% of all non-provisional patent applications are plant patent applications. That’s fewer than 1,000 filed each year.
The Provisional Patent Application (PPA) is a form of application that is used to secure a filing date with the USPTO, while avoiding some of the costs of a full utility patent application.
PPAs are never examined by the USPTO, never issue as a patent, and expire one year from filing. To obtain a patent on the subject matter of the PPA, the applicant must file a utility application before the one-year anniversary. That utility application will be able to claim the PPA filing date as its filing date.
PPAs enable an inventor to claim a filing date at a lower cost, allow the inventor to describe the invention as “patent pending,” and provide a year to evaluate the commercial viability of the invention.
A later-filed utility application may only claim the PPA filing date for subject matter that was disclosed in the PPA. PPA applicants still need to provide a thorough disclosure of the invention explaining how to make and use it.
Around 150,000 provisional applications are filed each year.