The two main types of patents available in the United States are utility patents and design patents. They offer different protections, so it’s important to understand their differences before you decide which one to apply for.
- A utility patent protects the specific function of an invention (e.g., a method or the machine). It does not protect any ornamental features of that invention—only its function.
- A design patent, on the other hand, protects the ornamental (i.e., aesthetics) features of an invention such as its appearance or shape. Even if the functional aspect is shown in the design patent, the functional aspects are not protected by the design patent.
Utility patent versus design patent: Recommendations
Inventors are oftentimes attracted to the design patent because of its low cost compared to a utility patent. However, it would be a mistake to seek a design patent for functional inventions. A competitor could make their product look different yet retain the functional aspect of your invention without infringing on your design patent.
The basic recommendation is to secure a utility patent for functional aspects of an invention. To protect the aesthetic looks of a product, secure a design patent. Here are my recommendations for the best uses of design patents.
Cost differences between utility and design patents
A utility patent is significantly more expensive than a design patent. For example, utility patents cost between $12,000 to $25,000. A design patent will cost a fraction of that. Design patents typically cost between $3,000 to $5,000.
Utility patents are more expensive because a utility patent application must explain in writing and show through the drawings how to make and use the invention. The patent attorney takes time to prepare a custom patent application that focuses on the point of novelty and includes options, and variations while trying to not limit the invention. Moreover, the patent application is oftentimes rejected. Arguments must be presented to the examiner to convince the examiner of the novelty and nonobviousness of the invention.
In contrast, a design patent must show the features of the invention. Typically, the inventor must have a 3d model of the product. As such, the work needed to prepare and file a design patent is significantly less compared to a utility patent. Also, most design patents are allowed which is not the case for utility patents.
How long does the USPTO take to grant a utility patent versus a design patent?
In general, a utility patent takes about 3 years for the patent office to examine and grant a patent versus 1.5 years for a design patent. However, the patent office provides ways to shorten or lengthen the time to get the utility patent and design patent. For example, you can file a provisional patent application first to delay the grant of the patent. Alternatively, to shorten the time span, you can expedite your patent application under a Track 1 request.
The length of time from the filing date to the patent grant date is based on the number of patent applications filed with the patent office has to review before they can review your patent application. They usually review the patent applications based on a first-come, first-served basis.
To skip the line, you can expedite your patent application to shorten the time to under one year for a utility patent and under 6 months for a design patent.
Patent terms: Utility patents and design patents
The patent term of a utility patent is 20 years from the filing date of the nonprovisional patent application. The patent term is lengthened or shortened based on various factors. For example, if the patent office took too long to examine your patent application, they will extend the length of the patent term. Read “Adjusting Patent Term Due to PTO Delays.”
A design patent expires 15 years from the date the patent is granted.
What is a provisional patent application?
A provisional patent application is a type of utility patent application. It is not a third type of patent. In this regard, a utility patent application can be filed as a provisional or nonprovisional patent application. Both establish a priority date for your invention as of the date the provisional or nonprovisional patent application is filed.
The provisional patent application is never examined and remains pending only for 12 months. To keep your invention patent pending, a nonprovisional patent application that claims priority back to the provisional patent application must be filed within 12 months.
A nonprovisional patent application will eventually be examined by the patent office. The patent office will email a rejection or notice of allowance.
Some patent attorneys advertise provisional patent applications as the cheap alternative. However, done right. A provisional patent application is only slightly less expensive than a nonprovisional patent application. For example, provisional patent applications cost up to $15,000. Also, read my article on the cost considerations to find out why.
If you’re seriously considering getting a patent, it’s important to understand how they work and what you should consider before filing. In general, a utility patent protects the function of an invention, while a design patent protects the ornamental features of an invention. Depending on what you need to protect, there are many different kinds of patents available to fit your needs.