1.8 Other Types of Patents
3 min read•june 25, 2024
Patents come in three flavors: utility, plant, and design. Each type protects different aspects of inventions, from functional features to unique plant varieties and ornamental designs. Understanding these distinctions is crucial for inventors seeking the right protection.
Misconceptions about patents abound. It's important to know that patents don't grant the right to use an invention, but rather the right to exclude others. They're also territorial, not global, and can be challenged or invalidated even after being granted.
Types of Patents
Types of patents and criteria
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- Utility patents
- Protect functional aspects of an invention (processes, machines, articles of manufacture, compositions of matter)
- Must be novel (not previously known or used), non-obvious (not readily apparent to someone skilled in the field), and useful (serves a practical purpose)
- Valid for 20 years from filing date (allows inventor exclusive rights to make, use, sell invention)
- Examples: new pharmaceutical compounds, improved manufacturing processes, innovative software algorithms
- Plant patents
- Protect new and distinct varieties of asexually reproduced plants (not found in nature, reproduced through methods like grafting, cutting, budding)
- Must be novel (not previously known or used), distinct (clearly distinguishable from existing varieties), and asexually reproducible (can be propagated without seeds)
- Granted for newly discovered or invented plant varieties (roses, fruit trees, ornamental plants)
- Valid for 20 years from filing date (allows inventor exclusive rights to reproduce, sell, use patented plant)
- Design patents
- Protect ornamental design of a functional item (visual, non-functional aspects of an article of manufacture)
- Must be novel (not an imitation of existing design), non-obvious (not a trivial modification of existing design), and ornamental (purely decorative features)
- Granted for unique appearance of manufactured items (furniture, clothing, product packaging)
- Valid for 15 years from issue date (allows inventor exclusive rights to make, use, sell articles with patented design)
Features of plant and design patents
- Plant patents
- Cover a single plant variety (cannot be a genus or species)
- Require complete description of the plant (distinguishing characteristics, method of )
- Drawings or photographs may supplement written description
- Examples: disease-resistant rose cultivar, seedless watermelon variety, genetically engineered soybean plant
- Design patents
- Protect visual appearance of a product (does not cover functional aspects)
- Drawings or photographs are essential (must clearly illustrate the ornamental design)
- Broken lines may be used to show portions of the article not part of the claimed design
- Examples: unique shoe sole pattern, ornate jewelry design, distinctive beverage bottle shape (Coca-Cola)
Common patent misconceptions
- Misconception: Patents grant the right to make, use, or sell an invention
- Reality: Patents provide the right to exclude others from making, using, or selling the patented invention (negative right)
- Patent holders must still comply with other laws and regulations when commercializing their invention
- Misconception: Patents are worldwide rights
- Reality: Patents are territorial (must be filed in each country where protection is desired)
- International agreements () can simplify the application process but do not create a global patent
- Misconception: All patents are utility patents
- Reality: Three types of patents exist (utility, plant, design), each with its own requirements and scope of protection
- Utility patents are most common, but plant and design patents serve important niche purposes
- Misconception: Patents are always valid and enforceable
- Reality: Patents can be challenged and invalidated (post-grant review, litigation)
- Reasons for invalidation: not considered, lack of or , inadequate disclosure
Patent Application Process and Maintenance
- involves interaction between the inventor (or their attorney) and a to determine patentability
- Provisional patent applications provide a temporary filing date and allow use of "patent pending" for 12 months
- Continuation applications can be filed to pursue additional claims based on an earlier application
- Once granted, patents require payment of maintenance fees to remain in force
- may be granted to compensate for delays in patent office processing
Key Terms to Review (17)
Asexual Reproduction: Asexual reproduction is a mode of reproduction that does not involve the fusion of gametes, resulting in the creation of genetically identical offspring. This process is in contrast to sexual reproduction, which involves the combination of genetic material from two parents.
Continuation Application: A continuation application is a type of patent application that allows an inventor to continue the prosecution of a previously filed patent application. It enables the inventor to further develop and refine the invention disclosed in the original application, potentially leading to the issuance of a new patent.
Design Patent: A design patent is a type of patent that protects the unique, ornamental design or appearance of a manufactured product. It covers the visual aspects of an invention, rather than its functional or utilitarian features, which are protected by utility patents.
Infringement: Infringement refers to the unauthorized use or violation of a legally protected intellectual property right, such as a patent, copyright, or trademark. It occurs when an individual or entity engages in activities that infringe upon the exclusive rights granted to the owner of the intellectual property, without their permission.
Non-Obviousness: Non-obviousness is a critical criterion for patentability that requires an invention to be more than just a trivial or obvious advancement over existing technology. It is a key component in determining the eligibility and validity of a patent application.
Novelty: Novelty is a fundamental requirement for obtaining a patent. It refers to the uniqueness and originality of an invention, ensuring that it has not been previously disclosed or made publicly available in any form before the patent application is filed.
Ornamentality: Ornamentality refers to the aesthetic or decorative features of an invention that are not essential to its function. In the context of patents, ornamentality is a consideration for certain types of patents that focus on the visual or ornamental aspects of a design, rather than its functional utility.
Patent Cooperation Treaty: The Patent Cooperation Treaty (PCT) is an international patent law treaty that provides a unified procedure for filing patent applications to protect inventions in its contracting states. It is administered by the World Intellectual Property Organization (WIPO) and is an important tool in the context of other types of patents.
Patent Examiner: A patent examiner is a professional employed by a patent office, such as the United States Patent and Trademark Office (USPTO), who is responsible for reviewing and evaluating patent applications to determine if they meet the legal requirements for obtaining a patent. They play a crucial role in the patent application process, ensuring that only inventions that are novel, non-obvious, and useful are granted patent protection.
Patent Maintenance Fees: Patent maintenance fees are periodic payments required to keep a patent in force after it has been granted. These fees help maintain the exclusivity of the patent and prevent it from lapsing or expiring prematurely.
Patent Prosecution: Patent prosecution refers to the process of obtaining a patent from the patent office. It involves the series of communications and negotiations between the patent applicant and the patent examiner to ensure the application meets the legal requirements for patentability and to secure the issuance of a valid patent.
Patent Term Adjustment: Patent Term Adjustment (PTA) is a mechanism in patent law that allows for the extension of a patent's term to compensate the patent holder for certain delays that occurred during the patent examination process. This adjustment is intended to ensure that patent holders receive the full patent term they are entitled to, despite administrative delays that may have occurred.
Plant Patent: A plant patent is a type of patent granted for the invention or discovery of a new and distinct variety of plant. It provides the patent holder with exclusive rights to asexually reproduce and sell the patented plant for a limited period of time, typically 20 years from the date of filing the patent application.
Plant Patent Act: The Plant Patent Act is a United States federal law that allows for the patenting of new and distinct varieties of asexually reproduced plants, excluding tuber-propagated plants. It was enacted in 1930 and provides intellectual property protection for plant breeders and innovators.
Prior Art: Prior art refers to the existing body of knowledge and technology that is publicly available prior to the filing of a patent application. It is a crucial concept in the patent system, as it determines the novelty and non-obviousness of an invention, which are key requirements for obtaining a valid patent.
Provisional Patent Application: A provisional patent application is a type of patent application that allows inventors to establish an early filing date for their invention without the full formal requirements of a regular patent application. It provides a way for inventors to quickly and inexpensively secure a priority date for their invention while they continue to develop and refine it.
Utility Patent: A utility patent is a type of patent granted for the invention of a new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Utility patents are the most common type of patents issued in the United States and are the focus of the U.S. patent system.