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Types of Patents

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Law Offices of Ernest Goodman > Patent Law  > Types of Patents

Types of Patents

A patent is a legal right granted by a government to inventors for their unique inventions, which allows them to protect their intellectual property for a specific period, typically 20 years. This exclusive right prevents others from making, using, selling, or importing the patented invention without the inventor’s permission. Patents encourage innovation by providing inventors with the opportunity to benefit from their inventions financially and maintain control over their use and commercialization. Inventions eligible for patents usually include new and useful processes, machines, articles of manufacture, compositions of matter, or any improvements thereof.

The USPTO can issue three types of patents:

Utility patents:

This patent is the type most people think of when they talk about patent–protection for technological advances and innovation. A utility patent applies to the way something is made, how a device operates, or a process for accomplishing some utilitarian purpose. 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. It can be any one of the following or an improvement on any of them:

(1) A manufactured article, such as barbed wire or a plastic horseshoe.

(2) A machine, such as a corn picker or a six-shooter.

(3) A composition of matter, such as a fertilizer or a saddle wax.

(4) A process for making or doing something, such as a method for braiding barbed wire or a schedule to maximize land use by alternating crops and cattle grazing periods.

Software patents fall under the category of patents that cover processes. To be eligible for a software patent, the invention must satisfy the same criteria as any other patentable invention, such as novelty, non-obviousness, and usefulness. Nonetheless, the patentability of software has been a matter of intense discussion and controversy, primarily due to the difficulties associated with assessing the non-obviousness of software innovations.

While software patents can provide valuable protection for software-based inventions, they also have some limitations. One major concern is that software patents may lead to patent trolls, or non-practicing entities that acquire software patents solely for the purpose of licensing or litigating them.

Additionally, the recent court decisions in the US, Europe, and other countries have introduced several challenges for software patents. For instance, many courts are now applying stricter standards to determine the patentability of software-related inventions, and there are more limits on the types of software-related inventions that can be patented.

Design patents:

A design patent is a form of intellectual property protection granted to the creator of a new, original, and ornamental design for an article of manufacture. Unlike utility patents, which protect the functional aspects of an invention, design patents protect the visual appearance or ornamental features of an object.

To qualify for a design patent, the design must be novel, non-obvious, and not solely dictated by function. A design patent provides the owner with the exclusive right to prevent others from making, using, or selling a similar design for up to 15 years from the date of grant.

Design patents are particularly useful for objects such as jewelry, furniture, clothing, and other decorative articles. They are often less expensive to obtain and maintain than utility patents, making them a popular option for protecting the appearance of a product.

To apply for a design patent, an applicant must submit drawings or photographs of the design and a written description that highlights the important features of the design. Once granted, a design patent offers a strong legal protection for the visual aspects of an object, which can be used to prevent competitors from copying or imitating the design.

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:

A provisional patent application is a type of patent application filed with a patent office to establish an early filing date for an invention. Unlike regular patent applications, a provisional patent application is not a request for examination and does not automatically grant a patent. Instead, it serves as a placeholder that allows an inventor to secure a filing date and provides them with additional time to develop their invention and evaluate its commercial viability before deciding to pursue a regular patent application.

A provisional patent application does not need to meet the same requirements as a regular patent application, such as formal claims, an oath or declaration, or an information disclosure statement. It can include a detailed description of the invention, any drawings or diagrams, and any other relevant information that the inventor wishes to include.

Once filed, the provisional patent application establishes a priority date for the invention, which can be important for determining the patentability of the invention in the future. Within 12 months of filing the provisional application, the inventor must file a regular patent application, which claims priority to the provisional application. The regular application must include a formal set of claims, an oath or declaration, and other formal requirements. If the regular application is granted, the patent’s term starts from the filing date of the provisional application.

Provisional patents can offer a cost-effective option for inventors to establish an early filing date and delay significant expenses associated with regular patent applications. However, it is important to note that while provisional applications offer some benefits, they still require adequate preparation and should not be taken lightly. Properly drafted and filed provisional applications can provide additional benefits such as an earlier priority date and greater flexibility in amending claims.

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:

A reissue application is a type of patent application filed with the United States Patent and Trademark Office (USPTO) that seeks to correct errors or omissions in an existing patent. Reissue applications can be used to correct errors in the patent’s specification, claims, or drawings, as well as to broaden or narrow the scope of the original patent.

To file a reissue application, the patent owner must identify the errors in the original patent and provide an explanation of how the errors occurred. The reissue application must be filed within two years from the grant of the original patent, and the scope of the reissued patent cannot extend beyond the scope of the original patent.

Once a reissue application is filed, the USPTO will conduct a new examination to determine whether the requested corrections are appropriate. If the reissue application is approved, a reissued patent will be granted, which will supersede the original patent. The reissued patent will have a new issue date and patent number, but will maintain the original priority date of the original patent.

Reissue applications can be a valuable tool for correcting errors or addressing issues that may have arisen after the original patent was granted. However, it is important to consult with an experienced patent attorney before filing a reissue application, as the process can be complex and may have significant legal implications.

Divisional application:

A divisional application is a type of patent application that is filed when an initial patent application contains more than one invention or claims that are independent of one another. A divisional application is used to divide the original patent application into two or more separate applications, each of which focuses on a distinct invention or claim.

The purpose of a divisional application is to ensure that each invention or claim receives its own patent protection. The divisional application can be filed at any time before the original patent application is granted, as long as it meets the requirements of the patent office.

To file a divisional application, the applicant must identify the claims or inventions that are the subject of the divisional application and provide a separate specification and set of claims for each divisional application. The divisional application will have a new filing date, but will maintain the priority date of the original patent application.

Once a divisional application is filed, it undergoes its own examination process to determine if the invention or claim is novel, non-obvious, and useful. If the divisional application is granted, it will be assigned its own patent number and can be enforced separately from the original patent application.

Divisional applications can be a useful tool for patent applicants who have filed an initial application with multiple inventions or claims that are independent of one another. By dividing the original application, each invention or claim can receive its own patent protection, which can increase the value of the patent portfolio.

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?

Patents have a territorial scope, meaning that inventors must submit patent applications individually in each country where they seek patent protection. For instance, if an applicant desires patents in Japan, China, the United States, and India, they must file separate applications in each of those countries. Nonetheless, some regional offices, such as the European Patent Office (EPO), function as supranational entities with the authority to grant patents, which can subsequently be enforced in the member states. Additionally, the Patent Cooperation Treaty (PCT) offers an international process for filing a single international application, which can lead to patent protection in a majority of countries

To safeguard an invention, acquiring a patent is essential. Without it, others may replicate and commercialize the same product. Patents serve to defend intellectual property rights, enabling inventors to develop distinctive new products and processes that can contribute to economic growth.

It is important to recognize the various types of patents available and determine the appropriate one 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:

Utility patents are a type of intellectual property protection that covers new and useful processes, machines, articles of manufacture, and compositions of matter. Utility patents are granted for a term of 20 years from the filing date of the patent application and provide the patent owner with the exclusive right to prevent others from making, using, selling, or importing the patented invention.

To be eligible for a utility patent, the invention must be novel, non-obvious, and useful. The invention must also be sufficiently described and enabled in the patent application to allow a person of ordinary skill in the relevant field to make and use the invention without undue experimentation.

Utility patents can cover a wide range of inventions, including software, mechanical devices, pharmaceuticals, and other types of inventions. The scope of protection provided by a utility patent is defined by the claims, which are the specific aspects of the invention that the patent owner seeks to protect.

Utility patents can be a valuable tool for inventors and companies seeking to protect their inventions and maintain a competitive advantage in the marketplace. However, obtaining a utility patent can be a complex and time-consuming process, and it is important to consult with a qualified patent attorney to ensure that the invention is properly protected and the patent application is properly drafted and filed.

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:

Plant patents are a type of intellectual property protection that covers new and distinct varieties of plants that have been asexually reproduced, such as by grafting or cutting. The plant patent protects the inventor’s exclusive right to prevent others from reproducing, selling, or using the patented plant variety for a period of 20 years from the filing date of the patent application.

To be eligible for a plant patent, the variety of plant must be new, distinct, and have been asexually reproduced. The plant must also be clearly described in the patent application, and the description must be accompanied by detailed drawings or photographs that show the distinguishing characteristics of the plant.

Plant patents can be an important tool for plant breeders, horticulturists, and other professionals in the agricultural industry seeking to protect and commercialize their new plant varieties. Unlike other types of patents, plant patents are limited to asexually reproduced plants and do not cover sexually reproduced plants or plant seeds.

It is important to note that obtaining a plant patent can be a complex and time-consuming process, and it is recommended to consult with a qualified patent attorney to ensure that the patent application is properly drafted and filed.

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.

Software patents

Software patents have been granted by the United States Patent and Trademark Office since the early 1970s. In 1972, the Supreme Court ruled in Gottschalk v. Benson that a patent for a process should not be allowed if it would “wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself”, but the decision did not preclude a patent for any program servicing a computer. The Supreme Court further clarified in 1981 that a claim is patentable if it contains “a mathematical formula [and] implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect”.

In 1982, the U.S. Congress created a new court (the Federal Circuit) to hear patent cases due to the different treatment of federal patent rights in different parts of the country. By the early 1990s, the patentability of software was well established, and in 1996 the USPTO issued Final Computer Related Examination Guidelines that confirmed the practical application of a computer-related invention as statutory subject matter.

The rise of the Internet and e-commerce led to an increase in patents for business methods implemented in software. However, the question of whether business methods are statutory subject matter is separate from the question of whether software is. Critics of the Federal Circuit believe that the non-obviousness standard is partly responsible for the large increase in patents for software and business methods. There have been several successful enforcement trials in the United States related to software patents, some of which are listed in the list of software patents article.


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