The tedious legalities of applying for a utility patent make pursuing a patent expensive. It is the patent holder’s responsibility to manage ongoing maintenance fees and continuous protection from competitors’ infringements. If you choose to file both applications with the USPTO, you will enjoy patent pending status while the patent office examines and approves your design and utility patent application. Utility patents are the most commonly applied for patents, making up 93.6% of all patent applications at the USPTO. While design patents certainly have their benefits in terms of time and money, they do have some limitations.
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Utility patents have a maximum life of 20 years after the date of application. A design patent might not have a huge competitive advantage if customers will be happy with a competitor's product, which has an appearance that is different from yours. Design patents may be helpful for products where the appearance is essential to the customer by helping them make their purchase.
Utility Patents
Your design patents will still cover competitive products with a substantially similar visual appearance. While the USPTO issues plenty of guidance on obtaining both utility and design patents, the process can be fraught with complexity and cost. Whether you decide to hire a lawyer or take advantage of more cost-effective services, knowing the difference between the types of patents is a useful first step for inventors needing legal protection for their ideas. A utility patent legally protects what a single invention does, how it is used, and how it works (35 U.S.C. 101). In other words, utility patents protect the detailed function of a product.
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Because design patents are easy to get, you might think they're better than utility patents. You'll have a harder time getting a licensing agreement with a design patent than with a utility patent. Utility patents are often more difficult and expensive to get than a design patent. You should plan on the Patent Office rejecting your utility patent application initially. Moreover, you should also plan on responding to a minimum of one rejection before your application actually is allowed. What a design or utility patent protects depends on the patent’s claim scope.
A nonprovisional utility patent application must include a specification, including a description and a claim or claims; drawings, when necessary; an oath or declaration; and the prescribed filing, search, and examination fees. The design patent application process, while still demanding, is typically more straightforward than utility applications. A crucial component is the detailed drawings or illustrations showcasing the design from multiple perspectives.
With a design patent’s speed and lower cost of obtaining a design patent, multiple design patents are often acquired for the same product. Design patents provide protection for a period of 15 years from the date of grant, with no maintenance fees required. The patent holder gains exclusive rights to make, use, and sell the design during this period. It is also significant to note that a product may be covered by both a utility and a design patent if it has novel functional attributes and a unique aesthetic. For example, a new kind of chair may have a utility patent for its innovative reclining mechanism and a design patent for its unique appearance.
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How Much Does a Design Patent Cost?
According to USPTO statistics, design patents have an objectively higher allowance rate than utility patents. In contrast, the average allowance rate for utility patents between the years 2006 and 2018 was 51.3 percent. Additionally, research shows design patents typically have a much higher first-action allowance rate – where they are allowed at the first instance without a rejection – of about 59 percent.
Intellectual Property Playbook
Consult our team of intellectual property attorneys for advice on which patent application is best suited for your invention. Your decision impacts the enforceability and breadth of your intellectual property portfolio. A utility patent grants extensive legal protections against functionally similar inventions, whereas a design patent protects against visual duplication. As such, before filing, conduct a critical analysis of market competitors, potential infringers, and the specific aspects of your medical device software that you wish to exclusively control. A non-provisional patent application is a type of application that protects novel, non-obvious, and useful products, processes, machines, and devices and provides 20 years of protection from your filing date.
Functional Protection With Utility Patents
Understanding the distinctions between utility and design patents is crucial when it comes to protecting your intellectual property. Whether your innovation revolves around function or form, Bold Patents is here to guide you through the patenting process. Our dedicated team of experienced patent attorneys can provide tailored advice and support, ensuring that your innovative endeavors receive the protection they deserve. Don’t leave your inventions unprotected; contact Bold Patents today for a free screening session and let’s safeguard your creativity together. As mentioned above, there are situations where one can obtain both utility and design patent protection for your invention. If the invention has a unique structure and ornamental design, both of these patent protections can be applied for.
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Some utility patent applications may cost more if you have to deal with repeated Office Action rejections and the possibility of an appeal. Five percent of all patent applications (more than 30,000 per year) are design patents. For utility patents, attorneys typically charge between $5,000 and $15,000+, depending on the complexity of the invention or process an inventor is seeking to protect.
The purpose of the specification’s abstract is to enable the USPTO and the public to quickly determine the nature of the technical disclosures of your invention. The abstract points out what is new in the art to which your invention pertains. It should be in narrative form and generally limited to a single paragraph, and it must begin on a separate page. This section, if applicable, should contain a statement as to rights to inventions made under federally sponsored research and development (if any). It is preferable to use all of the section headings described below to represent the parts of the description portion of the specification.
From this claim scope, it is possible to determine if other ideas infringe upon a patent. When it comes to choosing between a utility patent and a design patent, the nature of your invention or innovation is a significant factor. If your invention has a new or improved function or method, a utility patent would be appropriate. On the other hand, if your invention pertains to a unique, non-functional appearance or design of a product, then a design patent would be more suitable. Again, there are situations where both may apply, such as if you’ve developed a novel product that boasts both a unique functional attribute and an original aesthetic design.
A provisional patent application is an effective placeholder for 12 months before a non-provisional patent application has to be filed. You can describe and detail your invention and its elements without the formal requirements of a non-provisional patent application. Later, when you convert and file a non-provisional (regular) patent application, you can claim the benefit of the earlier filing date of the provisional patent application. The content of the non-provisional patent application that is covered by the provisional application receives the benefit of the earlier filing date.
If your invention is not functional but provides a new appearance, you may want to consider filing a design patent to protect those ornamental features. A design patent is not used for protecting mechanical features or processes but can be used for protecting new embodiments of old ideas. For example, if your idea is a new lampshade having a unique shape, you would typically seek a design patent since lampshades are already known and a utility patent would therefore be very difficult to obtain.
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