- Posted on: Nov 30 2017
What is a Patent?
Essentially a patent is a government issued license reserving the sole right of an invention to its respected authority excluding others from making, using, or selling said licensed invention. The two most common types issued by the United States Patent and Trademark Office (USPTO) are utility patents and design patents. Utility patents are by far the most common making up about 90 percent of all issued patents. If you are seeking protection from potential copyists for your invention or design, see one of our licensed patent attorneys at Dunlap Bennett & Ludwig for advice while applying.
What is the Difference Between a Design Patent and a Utility Patent?
A utility patent is a protective license relating to the function or purpose of a product. This type of patent is also commonly referred to as the “patent for invention”. This patent protects any machine, article of manufacture, process, or composition of matter that is considered new and useful. Examples of these forms of inventions would be any creation that;
- Is composed of moving parts: a computer, vacuum, stereo
- Manufactured goods: a mop, glassware, mattress
- Processes: software, engineering methods, business processes
- Compositions of matter: pharmaceuticals, artificial genetic creations, synthetic materials
A design patent protects the design embodied in or applied to a tangible product. This patent does not protect the function of the item, only the aesthetic appearance. The design must be inseparable from the article, and must be a definite, preconceived idea capable of being reproduced. It cannot be a product of chance. For instance, zipper binders, the framing for a chopper motorcycle, crocs, or an iPhone; these are all products that have been patented to protect their look from replication.
What is Required to Receive a Patent?
Utility patents and design patents share some similar qualifications on whether they are considered “patentable” or not. Non-obviousness, novelty, and originality are all aspects of patent acceptance. The three brackets do overlap in some regards, but also differentiate certain elements of consideration when reviewing propositions. Take for instance, novelty. Novelty essentially translates into “newness”, meaning the idea being considered can not resemble an already existing patent. The zippered binder, as mentioned before, holds a design patent but not a utility patent. The zipper itself does not directly affect the function of the binder but more so services as ornamental detail. Therefore, the zippered binder was eligible for a design patent at the time of application since no binders with zippers were already patented or being marketed; hence its “newness”. Potentially, this may have been considered when determining the originality of the device by comparing it to the initial loose-leaf binder patent accepted way back in 1854.
A distinctive stipulation for utility patents requires the invention in question to have a utility, a use, in order to be considered. It must serve some purpose/function that is useful, however, the invention cannot have been disclosed to the public prior to filing. The invention cannot have been sold, publicized or marketed in any way otherwise this will nullify the novelty aspect of the invention. The product must also be man-made, you cannot patent the laws of nature.
Requirements for design patents include regulations such as the product must be applied or embodied onto a tangible object. The design cannot be a standalone picture or design, it must be on something physical. The design must also have an ornamental aspect, as in it must be appealing to the eye whether through embellishment, adornment or its physical configuration. Keep in mind that the ornamental aspects must not have any direct connection to the function of the product. If the removal of the decor would affect the use of the item, it would be ineligible for a design patent.
If you are thinking of applying for either patent, or even both, it is best you speak with a licensed attorney to assist you during the application process. The requirements of the USPTO can be very tricky for someone unfamiliar with the process. Their qualifications for patent acceptance can be either be very specific, or somewhat vague depending on where in the application process you are. Coupled with the fact you could be looking at anywhere from one to five years of filing before your application will be accepted or rejected. Legal assistance in this case can be extremely beneficial to inspiring innovators by bearing the brunt of the paperwork, while also helping you understand what the process will entail.