TYPES OF PATENTS
Utility Patents are the most common patents granted by the USPTO. Utility patents cover any machine‚ process‚ manufacture‚ or composition and have a statutory term of 20 years from the application filing date. Examples of utility patents include telephone components‚ convection ovens‚ genetically engineered bacteria‚ and methods for producing rubber. Sub-categories of utility patents include process patents and business method patents.
Design patents‚ on the other hand‚ do not protect the functional aspect of an object. Rather‚ in a design patent‚ it is the design or appearance of the object that is protected‚ not its use or process. If the design’s primary purpose is to serve a function other than decoration‚ it will receive a utility patent. In contrast‚ if the design’s primary purpose is simply decorative‚ it should be protected by a design patent.
To receive a design patent‚ a designer must meet a unique set of requirements. The design must be new‚ non-obvious‚ and ornamental. The ornamental element requires that the design have some level of aesthetic skill or artistic concept. The new and non-obvious requirements are similar to that of a utility patent. (See How to Patent) The design may not exist in the prior art and may not be obvious to one skilled in the industry.
For example‚ a shoe could include both design and utility patents. Utility patents could protect the functionality of the shoe such as the lacing pattern to provide ankle support‚ the sole to provide traction‚ or the arch support of the shoe. A design patent could protect the decoratively patterned sole of the shoe or a decorative but non-functional pattern on the exterior. In another instance‚ a decorative design for the exterior of a refrigerator could be protected by a design patent with the interior cooling components protected by a utility patent.
Design patents‚ unlike utility patents‚ have a term of 14 years rather than 20 years. During this time‚ the patent holder may exclude others from using‚ making‚ or selling objects containing the patented design. Infringement of design patents is often determined by the “ordinary observer test.” To apply this test‚ the court examines whether an ordinary observer‚ having viewed the prior art‚ would believe that the patented design and accused design are the same.
While plants may be protected through utility patents‚ there are specific plant patents that protect newly created plant varieties as well. Plant patents were originally limited only to plant offspring that was asexually reproduced. When plants reproduce asexually‚ the offspring is essentially a clone‚ genetically identical to the parent plant. Recently however‚ sexually reproduced plants are eligible for plant patents as well. Plant patents last for a period of 20 years.
In addition to the plant patent system‚ the Plant Variety Protection Act allows the Department of Agriculture to certify originally created plants. This certification lasts for 18 years and allows the holder to exclude others from using‚ selling‚ reproducing‚ or importing the plant variety.