What Type of Patent Should You Choose?

by Chris Peil on March 13, 2015

Securing the rights to an invention or intellectual property means filing for a patent, but not everyone knows that there are currently six different kinds of patents available from the U.S. Patent and Trademark Office, or USPTO (source: uspto.gov). The two main patents granted by the USPTO are design patents and utility patents. Most people who apply for a patent will receive one of these, but they still need to know which one is appropriate for their situation.

What Type of Patent Should You Choose?

Utility Patents

A utility patent protects the functional aspect of an invention, making it more broad than a design patent. Utility patents are by far the most common patents granted by the USPTO. While they are more expensive than design patents, they do usually provide more protection since it can extend to different variations of an invention and makes it more difficult for competing products to avoid patent infringement.

Unfortunately, there are some downsides to utility patents. First of all, they are more expensive than design patents. The application fee for a basic utility patent is $330, which is in addition to $540 patent search fee and a $220 examination fee. On top of that, there are maintenance fees of $980 after three years (source: invents.com). It also takes between two and three years for an invention to receive protection from a utility patent, and that protection doesn’t extend to ornamental features of the invention.

Design Patent

While utility patents are the most common patents filed by the USPTO, design patents are the least common. A design patent protects the ornamental design of an invention and prevents others from selling the design for a period of 14 years. They are far less expensive than utility patents, and they are typically granted after one to two years. They are also not subject to maintenance fees.

The one major downside of a design patent is that it doesn’t protect the functional features of an invention. Therefore, it is very easy for competitors to design around such a patent by developing a product with a similar function and a different appearance. This of course also makes it difficult for a design patent to protect variations of a product.

Choosing a Utility Patent or a Design Patent

In most cases, a utility patent will provide all the protection that an invention needs as long as the inventor is willing to pay for it and wait up to three years for the patent to be granted. It protects an invention’s functional features, and it extends to cover variations of an invention. However, if the main feature of a product is its appearance, a design patent is all that is needed. This may be a better option for those who don’t like the idea of paying maintenance fees or waiting up to three years before receiving protection.

An inventor may want to apply for both a utility and a design patent if an invention includes unique functional and design features. This is a much more complicated scenario, and it is recommended that any inventor taking this path speak to an attorney before filing for any patents.

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