You should obtain a utility patent if the unique feature of your invention is functional in nature. On the other hand, you should obtain a design patent if the unique feature of your invention is in the visual aspects of your product or its ornamentation. To learn more about the differences between utility and design patents, read What are the differences between utility patents and design patents?
To find out if getting a patent is recommended, read: Should you get a patent for your invention?
How to determine if you should get a utility patent or a design patent?
Inventors want to know whether their invention should be protected with a design patent or utility patent. The way that I determine whether they should obtain a utility or design patent is by looking at the words that they use to describe their invention.
For example, if they say that their invention can make people’s lives easier, do a task faster, or perform a maneuver safer, these are words of function, not aesthetics. Their invention should be protected with a utility patent. However, if they say that you need to see their invention, this indicates that the invention is really related to the visual aspects of the invention. Their invention should be protected with a design patent.
When you talk to your business partners about the invention, listen to the words that you use to describe your invention. Your words will tell you whether you should get a utility patent or a design patent. If you still have questions, please call me to schedule a consultation.
Examples of inventions protected by a utility patent
Examples of inventions protected by a design patent
Common mistakes in filing a design pattern
The most common mistake that inventors make in filing a design patent is believing that a design patent will protect the functional features of their invention. Unfortunately, design patents cannot be used to block your competitors from incorporating the functional aspects of your invention.
Why do people get a design patent when they should really get a utility patent?
People like design patents because of their low cost. Read my article on the cost of a design patent. Unfortunately, design patents are prohibited by law from protecting the aesthetic features of your invention.
Common mistakes in filing a utility patent
The biggest mistake that inventors make when they file a utility patent is to think that a provisional patent application is a cheap way to get patent pendency on their invention. They see so many patent attorneys and patent agents offer provisional patent applications as low as $200 and upwards to a few thousand dollars.
These cheap provisional patent applications have significant problems. First, the patent attorney working on these cheap patent applications doesn’t have enough time to consult with the inventor and properly identify the point of novelty. A failure at this basic point will cause the cheap provisional patent application to not even protect the invention in any meaningful way. Read more: Provisional Patent Application: Cheap Alternative?
Moreover, even if the patent attorney were to properly identify the point of novelty of the invention, the patent attorney doesn’t have enough time to preload the provisional application with all of the options, variations, and alternative embodiments to provide sufficient patent protection. It’s just a skeleton. Others can get a patent for things that your cheap provisional patent application doesn’t include.