Westminster, CA asked in Patents (Intellectual Property) for California

Q: What are the different kinds of patents?

I'm assuming there are design patents, functionality patents, process paten

2 Lawyer Answers
Peter D. Mlynek
Peter D. Mlynek
Answered
  • Patents Lawyer
  • Moorestown, NJ

A: The vast majority of patents are known as "utility patents." This means that they claims some sort of an invention that is useful and new. It could be a process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.

There are also two special types of patents: a design patent and a plant patent. A design patent is for a new ornamental design for an article of manufacture. A plant patent is for certain types of new plants.

John B. Hudak
John B. Hudak
PREMIUM
Answered
  • Patents Lawyer
  • Milford, CT

A: There are three types of patents: (1) utility patents; (2) design patents; and (3) plant patents.

A utility patent protects the functionality of an invention or “protects the way an article is used and works”. A utility patent can be obtained for a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” The length of patent protection for a utility patent is 20 years from the filing date of the patent, although the patent term can be extended if there are delays by the patent office during the application process.

A design patent “protects the way an article looks.” A design patent can be obtained for “any new, original, and ornamental design for an article of manufacture.” “An ornamental design may be embodied in an entire article or only a portion of an article,” meaning the design can be the way the whole item looks or the way part of an item looks (e.g. the whole refrigerator or the handle of the refrigerator). Or, the design can be “ornamentation applied to an article” (e.g. a leaf and flower design on the surface of a jewelry box). The length of protection for a design patent is 15 years from the date the design patent was granted.

A plant patent protects a plant which was “invented or discovered in a cultivated state, and asexually reproduced.” Also, there is the requirement that “the part of the plant used for asexual reproduction is not a tuber food part” such as a potato. “Algae and macro-fungi are regarded as plants, but bacteria are not”. The length of protection for a plant patent is 20 years from the filing date of the plant patent application. Plant patents are not very common.

Sources:

https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/design-patent-application-guide#def; 35 U.S.C. 101; https://www.uspto.gov/patents-getting-started/general-information-concerning-patents#heading-2; 35 U.S.C. 154(a)(2); 35 U.S.C. 154(b); 35 U.S.C. 171(a); 35 U.S.C. 173; https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applications/general-information-about-35-usc-161#heading-1; 35 U.S.C. 161; MPEP 2701

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