Depending upon your invention, your situation, and your objective, the type of patent you choose to pursue can be an important decision. Each type of patent application has different strengths and weaknesses that can make a difference in maximizing the value of your intellectual property protection.
Utility patents, which are more common, are directed generally to the structure, composition, and/or process of an invention. These types of patents require a detailed description that explains how to make and use the invention, and carefully crafted claims that detail the required elements of your invention. If drafted well, the claims will include terms that not only cover your invention, but also include broad language that prevents others from easily designing around your invention.
While valuable, utility patents are more difficult to obtain, taking three to four years to obtain allowance on average. They also typically cost more, include government maintenance fees after allowance, and are limited to a twenty-year term. Still, if done correctly by an experienced patent attorney, a utility patent can be the broadest and most valuable type of intellectual property available.
Design patents, the word “design” implies, are directed to the ornamental appearance of an invention. These types of patents require formal drawings that include Patent Office requirements showing multiple views of the ornamental features of the invention as opposed to the structural and functional elements. The claims merely refer to the invention as shown in the drawings.
In comparison to utility patents, design patents are relatively easy to obtain, typically, within a year. Part of the reason for this is that design patents are fairly narrow in their scope of protection and only prevent others from making, selling or using an article similar in appearance. Design patents typically are less expensive, require no maintenance fees, and have a term of fourteen years.
If managed correctly, design patent protection can last beyond the fourteen-year term through a type of trademark protection called trade dress. By including “look for” statements in your advertising that direct consumers to look for the ornamental features of your product, you can create protectable trade dress which will last as long as you continue to sell your product.
Utility vs. Design
In most situations, if available, because of the breadth of protection, pursuing a utility application is typically the best option. When utility protection is not available, a design patent provides an alternative option that provides protection, even if the protection is more narrow. Still, in some situations, when an invention has both novel structural and ornamental features, pursuing both may be the best option. An experienced patent attorney should be able to guide you through this process and help make the decision that is best for you.