More Patent Law Basics: Types of Patents

In previous blog entries we've covered what patents are: basic monopolies on technology that guarantee that others cannot make, use, or sell it for a specified amount of time. But we haven't touched on the fact that there is more than one type of patent. In reality there are several different kinds of patents. Let's talk about the three most basic kinds of patents. The first, which makes up the majority of patents filed in the U.S., is called a utility patent. Utility patents protect new and useful processes, machines, manufactures, or composition of matters, or a new and useful improvement thereof. Notice that this language comes directly from Title 35 of the United States Code. But what does this really mean? Well, if you come up with a new idea for something then you can prevent others from making your invention or selling it for 20 years from the earliest date that you file the idea with the United States Patent and Trademark Office (USPTO). Fairly simple concept, let's move on to the other types.

The second type of patent that we'll discuss is called a design patent. This is slightly different from a utility patent in that it protects the new, original, and ornamental design embodied in or applied to an article of manufacture. Design patents permit owners to exclude others from making, using, or selling the design for 14 years from the date of patent grant. Ok, so design patents basically cover how something looks. Think about how a 5-hour Energy bottle looks. An image of it probably pops right into your mind. Those tiny bottles are actually protected by many design patents-not just one (pretty cool, right?!). Now go back three sentences and reread what I wrote. Note that the term, or length, of a design patent is shorter than a utility patent--it is only 14 years. AND note that the term lasts from the date of grant, or the day that you receive the patent, as opposed to the date you file for it.

Finally, let's talk about plant patents. These patents cover just that: plants and only plants. These are quirky little patents and there really aren't that many that get filed each year but there are rumors that the plant patent application examiners at the USPTO always have lots of interesting plants that get sent to their offices from inventors. Basically, you can receive a plant patent for a new and distinct, invented or discovered asexually reproduced plant including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, it permits its owner to exclude others from making, using, or selling the plant for a period of up to twenty years from the date of patent application filing. So what the heck does all that mean? Well, you cannot simply

find a plant on the side of the road and claim that you deserve a patent on it. This has to be something that you've cultivated to some degree. Oh, and it can't be a Jerusalem artichoke. Why? I don't know. That might be a great discussion for Michelle Lee or any of the other powers that be at the USPTO.

Happy patenting, and remember, I love interaction so email me at mmulaw@outlook.com or tweet me: @PatLawChick.