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What are the Different Types of Patents?
A patent is a legal right that provides an intellectual property right to an applicant, who invents something useful, new, and non-obvious and files a formal patent application that provides the applicant with exclusive rights to the patented invention idea for a certain period.
One of the main reasons companies get thousands of new patents issued every year is that patents are great assets for companies since they give them exclusive commercial rights for their inventions and protect them from competition. A key element that inventors consider before filing their patent application is whether it will succeed or not, in simple terms is the invention idea patentable or not.
Many patents are filed worldwide across many nations each year. For example, more than 600,000 patent applications are filed every year at the United States Patent and Trademark Office (USPTO), which includes different types of patents such as utility patents, design patents, and plant patents. Every year the count of approval of patents varies in number. According to the latest reports from the USPTO, 48% of all patents filed are not approved or face rejection, and the remaining cover almost 52% are approved. Every year, the count of the number of patents filed and granted increases. Recently in 2021, USPTO granted more than 3 lakh patents.
Table of Contents
Types of Patents
There are mainly three patent types – utility patents, design patents, and plant patents.
Each type of patents has own specific eligibility criteria and protects a particular type of invention idea. In addition to this, it is possible for a particular filed of invention idea to have more than one patent.
Utility patents are patents issued across the world especially in the United States, accounting for more than two-thirds of all issued patents. It is granted for an invention that is new, useful, and non-obvious. It can include any machine, process, manufactured article, composition of matter or any invention that is improvement over previous one.
There are three types of utility – General utility is based on functionality, Specific utility is how the invention performs the function, and Moral utility makes sure that the invention is not poison or facilitate wrong use.
To maintain all the patents in force, maintenance fees must be paid, and this came into a rule for the applications filed on or after December 12, 1980. This fee is due for six months window after every 3.5, 7.5, and 11.5 years from the grant date of the patent. Post-six months window extra fee amount is charged while paying maintenance fees.
Design patent is a patent issued for designs or structures. It is not limited to and may include specific chairs, shoes, tables, machinery, fonts with novelty, unique computer icons, etc. For a design patent, a design must be aesthetic or ornamental and cannot be functional. Just like a normal utility patent, on issuing or granting a design patent, the inventor gets a sole right that stops others from making, using, selling, and importing the design.
As per USPTO, all design patent applications filed before May 13, 2015, provides a total life of 14 years to a patent from the date of grant as compared to 15 years for design patent applications filed after May 13, 2015. Unlike utility patents, design patents need no maintenance fees. As per the latest trends, many companies have filed design patents for inventions involving user interfaces including curved or designed edges or shapes of user display interfaces.
A design in legal terms is related to the surface ornamentation of an object including the shape or configuration of an object. The inventors need to make sure that the design is inseparable from the object for obtaining design patent protection. A design patent only protects the appearance of an object, but a utility patent application must be filed if an inventor wants to protect the functional or structural features of an object.
Plant patents may be granted for inventions or discoveries or asexual reproductions of any distinct and new variety of plant. asexual reproduction means the plant is reproduced by grafting or cutting the plant or by using other nonsexual means instead of being reproduced with seed.
Reproduction of a plant is shown as a discovery of asexual reproduction. This may consist of generation of mutations or hybrid variety including newly found seedlings by cultivating different types of plants. The plant patent focuses more on conventional horticulture and protects the inventor rights by keeping others from creating the type of plant or gaining from the plant for around 20 years from the date of filing the patent application. The lifetime of plant patents is 20 years from the date of filing and no maintenance fees apply.
A patent application is an application filed for the grant of a patent typically for an invention idea found and then described by the applicant. A proper application will comprise of a description of the invention idea (can be detailed or not initially), along with required forms and the applicable fee for the application. Each patent application fulfils a unique purpose although they are of various types.
Different Types of Patent Applications
The various types of patent application are – Provisional Application, Ordinary or Non-Provisional Application, Convention Application, PCT International Application, PCT National Phase Application, Patent of Addition, Continuing Patent Application, Divisional Patent Application, Reissue Application, Continuation In-Parts Application (CIP) etc.
- Provisional Application – A provisional application is a type of application that need not be written in any specific format or require complete information. It is typically filed when the invention is not finalized or is under research process. It is filed in order to claim priority date benefits and preventing others from filing a patent application for a similar invention.
- Non-Provisional Application – A non-provisional application for a patent filed in the Patent Office without claiming any priority from a patent application made in any convention country or without taking any related reference to any other patent application that may be in process in any office is called an ordinary application or a non-provisional unlike provisional applications, this type of application requires complete specifications and claims.
- Convention Application – A convention application is filed to claim a priority date based on a similar invention and for which application is filed in any of the convention countries. This lets the inventor claim the priority of the convention country for a patent filed in any other country.
- PCT International Application – A PCT application is an international application, which helps an investor get a patent in multiple countries in a single filing, though the application will not provide the grating of an international patent. It is ruled by the Patent Corporation Treaty (PCT) and authorized in all contracting countries. This application provides the application a time of around 30-31 months to enter into various countries from the filing international application or from the priority date, thus giving the inventor extra time to process the invention.
- PCT National Phase Application – It is considered necessary for an inventor to file a national phase application> in every nation where they require protection through a patent. The time for filing the same is within 31 months from the priority date or the international filing date, whichever is earlier. The time can be increased or lengthened through National Laws by each member country.
- Continuing Patent Application – A continuing patent application> is a patent application that claims priority to a previously filed patent application. This can include a continuation, divisional, or continuation-in-part application. Continuation allows only amendments to claim, and continuation-in-part applications allow an amendment to claim as well as a description and both are generally available in the United States only. Divisional patent applications require separate filing for an invention that is separate and can be divided and these are also available in other countries also.
- Reissue Application – If an applicant or inventor surrenders the patent and re-files the original application to correct the defect such as when the issued patent fails to claim the full scope of the disclosed invention, a patent application is re-issued. This can be done by submitting the patent application again with broader claim scope (no new addition of claims is allowed at this moment) and getting the full coverage.
What is Utility Patent?
A utility patent is a legal right for an invention idea that is new or improved and has some utility. It is also called “patent for the invention” and provides authorization to the applicant for a specific time, which is usually 20 years, and excludes others from making, selling, or using the invention without consent.
Can I Get a Utility Patent?
An individual seeking a utility patent is recommended to carry out a prior art search especially a utility patent search to see if any patented or published similar invention is available publicly. This is advisable and critical before filing a patent to prevent filing cost loss and in a case, a similar invention is available publicly as it would be hard to get a patent on the already published invention.
Utility Patent for Services
A utility patent provides an inventor an exclusive right for a new service invention which, must be a new way or process of the service. It must be unique, novel, and must possess some industrial applicability. If the service invention does not exist and is patentable, one must file its patent application that will include the following:
- Fee (as mentioned on patent website of country where filing is done)
- Data sheet
- Claims corresponding to the service invention
- Description of the service invention
Utility Patents vs. Other Patents
Apart from a utility patent, there exists a design patent that lasts for 14 years from the date of filing and can also be taken for a product for which a utility patent is filed. A condition for both a utility patent and design patent is that the invention or product should have industrial applicability and serve some practical use. In addition to this, a plant patent that has life for 20 years from the filing date is given to one who has discovered or created a new variety of plants.
Utility Patent Sections
Utility patent can either be filed provisional followed by non-provisional or directly non-provisional. Both must include the following sections:
The sections of the provisional patent application comprise:
- Illustrations that support the invention which can be in form of some handmade drawings, computer illustrations, flow chart and diagram.
- Written detailed description of the invention in your own words & drawings describing unique and novel feature of invention so that a person skilled in the field can understand it well
- Name and contact details of the inventor
- Patent attorney name and contact information
The sections of non-provisional utility application comprise:
- Title of invention, at the top of the first page.
- Abstract, limited to a single paragraph and mentioning what is new in the invention
- Reference to related applications, mentioning patents from where you claim priority i.e. from previously filed provisional or non-provisional applications.
- Background, includes prior art of the invention i.e., problems present in the prior arts
- Brief summary, the brief idea of the claimed invention
- Brief description of drawing, list all the figures by numbers and a short statement depicting what that specific figure explains
- Detailed description of the invention, a detailed disclosure of the invention process, and on how the invention can be used in different ways
- Claims, describe the scope of the patent protection.
- Drawings, to understand the subject matter through visualization.
Sample Provisional Utility Patent Application
The provisional application is not a full-fledged document to be filed. It can include partial information.
Sample Non–Provisional Utility Patent Application
The non-provisional application is a full-fledged document to be filed to get a patent for an invention and it will be examined by the examiner by paying examination fee.
Patent Number Meaning
A patent number is a unique number for an application or issued patent and is provided by a patent office where the patent is issued. The format of a patent number contains variety of information like the year the patent was issued, the number of the patent, country where it was issued, kind code which provide information about the application number of patents that is issued.
For example, all patents issued in United States, generally begin with “US” followed by the seven/eight digit patent number and the last part is a kind code. Each part is separated by a hyphen. A U.S. design patent number starts with a “D” or the letters “Des”.
Utility Patent Grant issued prior to January 2, 2001
Utility Patent Application published on or after January 2, 2001
Second or subsequent publication of a Utility Patent Application
Utility Patent Grant (no pre-grant publication) issued on or after January 2, 2001
Utility Patent Grant (with pre-grant publication) issued on or after January 2, 2001
Plant Patent Grant issued prior to January 2, 2001
Please Refer Link – USPTO
Types of Utility Patents
Utility patents are those inventions that disclose a new product or process or improvement in an existing product or process and contribute to technological advancement in the field of invention. Utility patents are filed for a machine, a process, manufacture, a composition, or an improvement of an existing idea, and these are explained below in detail.
Utility patent Categories
- A process patent is for a method / or a procedure followed in order to achieve an object of an invention. The object of an invention could be a product or a feature that provides a technical advancement over the existing invention.
Example: A process for manufacturing a product like a battery.
- A patent for a machine is considered as a patent for a product that is capable of performing an operation.
Example: A patent for an improvised motor
- A patent for manufacture is considered as a patent for a product that does not have a moving part, however, has a technical advancement over the available/existing product.
Example: An optimized glove box lid
- A patent for a composition is a patent generally given for new compositions of materials, products(drugs), etc.
Example: New material composition for a vehicle seat
- A patent for an improvement in existing idea is a patent for an invention which has a technical advancement over the existing idea. The invention can be a product / a process.
Example: Adaptive headlights in vehicle
How Does a Utility Patent Work?
What is Utility Provisional Patent?
A provisional patent application establishes and provides an inventor the earliest effective filing date which can be later claimed in the non-provisional application. The provisional application is never examined and does not have any strict format and only lets others know that the patent for which the application is filled is in the patent-pending phase and gives the inventor 1 year of time to delay the examination cost.
How to File a Provisional Utility Patent?
In order to file a provisional utility patent, the applicant needs to do is to file a specific form (depending upon the country in which filing is done) eg, USPTO Form SB-16 for the United States. This form should be submitted with appropriate drawings, a description of the invention idea, and an application data sheet along with the applicable fee.
How to File a Utility Patent?
The two ways to file for a utility patent are (1) first filing a provisional patent application and then filing a non-provisional patent application or (2) directly filing a non-provisional application.
- One must initially carry a prior art search as recommended above to see if the invention is patentable.
- File a utility patent application in the patent office and a complete utility patent application must include both technical details and drawings in a proper format.
The description should be detailed and explain how and what the invention does. It may include advantages over prior art drawbacks and the drawings should have proper and detailed labelling along with the proper text in the description. The application will also consist of claims which are usually referred to as the main part of any patent, and the claims should define the scope of patent protection.
- If the application filed is rejected by the patent office, the applicant can fix the problems and amend the application as required.
- If the application is accepted at the patent office, its status changes to patent-pending and the examiner will carry out a search to see if the patent application filed is novel and non-obvious. In case, the examiner finds the invention is not patentable at any step, the applicant is given chance many times to modify or amend the claims as per the scope of the invention. At last, a notice of allowance followed by issue (grant) date of a patent is provided on successful payment of a fee.
Utility Patent Infringement
Infringement of utility patent takes place on making unauthorized use of the patented invention by making, selling, using, or importing something without prior consent or license from a patent holder.
Types of Infringement
There are two types of utility patent infringements:
- Direct Infringement: Direct Infringement occurs when any product or invention considerably close to patented invention is used, sold, or made without prior permission or obtaining a licence from patent holder.
- Indirect Infringement: Indirect Infringement occurs when a person is not directly responsible or has not actively participated in the infringement. Generally, it occurs when a company sells a spare part that is used to manufacture an infringing product. In that case, the company selling the spare part will be considered an indirect infringer.
Patent infringement basically, falls into two categories:
- Literal Infringement: Literal infringement, where each element of claim directly corresponds to product feature.
- Doctrine Of Equivalents: Doctrine of equivalents, where some features of claim do not direct correspond to product feature but are identical or similar and substantially perform the same function.
To prove infringement analysis following point must be taken into consideration:
- Define the scope of claim.
- Comparison of claim with accused product to determine if there is similarity and occurrence of literal infringement.
- Comparison of claim with accused product to determine if there is similarity and occurrence of infringement under doctrine of equivalents.
How Long do Utility Patent Last?
Utility Patent Length
The length of a utility patent is 20 years from the non-provisional filing date of a patent application and is defined as the time for which a patent will be alive and provide legal rights to the applicant and inventor.
Utility Patent Expiration
Utility patents will become dead or expire after 20 years from filing date of patent application and during the term of a patent (once the patent is granted), the inventor can enforce the patent rights against a competitor and prevent a competitor from making, using, selling, offering for sale, or importing an invention.
Once the term of patent is completed, the term cannot be extended, and the invention can be used by anyone after the expiration of the patent term. To maintain a patent in force during the term of a patent, renewal fees (or maintenance fees) are required to be paid in a timely manner after the patent gets granted.
During the term of patent, the inventor / applicant can license or sell or use the patent to obtain monetary profit from the invention. After the patent term expiry, the patent is open for use by everyone to gain knowledge.
Utility Patents Requirements
As per utility requirement patent law, there are four requirements for utility patent(s) that need to be fulfilled and are as follows:
- Novelty: The invention should be different in some form as to compared to prior arts (i.e., existing public domain knowledge or public disclosure such as Offers for sale, sales, public use, and publications). If an inventor publishes any disclosure/his invention more than a year before applying for a patent, then it is considered as prior art only. This one-year grace period is granted in the United States, but most other countries do not grant such a period.
Hence, it is recommended to file a patent application before making any public disclosures. Further, a confidentiality agreement (CDA) or non-disclosure agreement (NDA) might be signed between the third party and the inventor, before disclosing the invention prior to filing a patent application.
- Utility: The invention should be useful. The claimed invention should work as it is claimed and useful for a purpose. The inventor can add a utility statement to its patent application to prove its utility to an examiner. While patenting a pharmaceutical or chemical compound, this requirement is more important, as it is compulsory to define a specific or practical usage for new compound.
- Non-Obviousness: The invention must not be obvious from the perspective of an industry expert (POSITA). It should show some advancement over the existing prior arts. The determination of this utility patent requirement is one of the most difficult determinations in patent law.
To take such a decision, an examiner in the patent office will review the closest patent applications for the invention for which patent protection is sought. If no such prior art is found, then a combination of two or more prior arts can be used to find all the features of the claimed invention.
If the examiner successfully finds such a combination, then he/she can reject the invention as an obvious invention. A combination of prior art references is a very common type of patent application rejection. A combination of known prior art elements that retain their respective properties after they have been combined.
Subject Matter Eligibility:
There are certain inventions such as software related and relating to certain types of medical tests and diagnostics that are likely to be challenged by this requirement of a utility patent. The inventions that do not fall under Section 101 of the Patent Act are said to be failed as per the “Subject Matter Eligibility” requirement for patent protection and do not get qualified as valid US patents.
Few examples that are outside the scope of Subject Matter Eligibility: music, literary works, compilations or arrangements of data, etc. A software claims not associated with a process or machine/device will also not fulfil the Subject Matter Eligibility requirement and hence not patentable. To solve this problem, patent attorneys will claim software in the context of a computing process or machine.
Utility Patent Cost
What is the Cost of Utility Patent?
The cost of utility invention/patent is split into three key categories: (1) patent preparation and filing cost, (2) prosecution cost to get the patent granted, and (3) post-allowance fees and patent maintenance fees paid after the patent is allowed/granted, this sums up the average cost for a utility patent to $5000 – $50000.
What is the Cost of Preparing and Filing a Utility Patent?
There are two ways to file a utility patent i.e., by either directly filing a complete non-provisional application in the patent office or first filing a provisional application and within a 1-year window, submitting a further non-provisional application. Based on the type of patent application, the cost of writing and filing utility patents in both cases will fluctuate.
The provisional patent application cost lies between $75 to $15000 & non-provisional application cost lies between $455 to $20000, and further if the inventor wants to upgrade from provisional to non-provisional application, the cost will entirely depend upon the quantity of data you included in the provisional patent application and further want to add into the non-provisional application. Each of the above patent preparation & filing cost is further divided into below sub-categories:
1. Patent Attorney Expenses
For preparing/drafting and filing a patent, the patent attorney would calculate the related cost based on the below-mentioned parameters:
- Type and complexity of the invention, where the software inventions cost on a higher side.
- Time spends by the attorney to understand the invention clearly and also to broadly draft a patent as desired by the inventor,
- Experience of the patent attorney
The compiled cost for the patent attorney would be more than $10,000 and this attorney fee can be ignored, if you yourself want to draft the patent, however, the inventor should focus on the quality and legal parameters of the invention during this time.
2. Skilled illustration cost, with typical varies between $50 to $125 per sheet.
3. USPTO Patent Filing Fee
The major parameters upon which the utility idea/patent filing fee depends are the length of the application, which is related to the number of pages, the number of claims (independent as well as dependent), and the type of entity (small or micro) that sought to apply for the patent.
The utility patent can either is filled electronically through EFS-Web or non-electronically by visiting the patent office and paying an additional $400 as non-electronic filing fees. Further, the filing fee is divided into the below categories and summarized well on USPTO
- Provisional utility application fee, which lies between $75 to $300
- Basic filing fees for non-provisional utility application, lies between $75 to $320
- Fee for each independent claim beyond 3, which is $120 to $480
- Fee for each claim above the total of 20 claims (dependent and independent), which is $25 to $100
- Search fee, which lies between $150 to $700
- Examination fees, which lies between $200 to $800
What is the Prosecution Cost of a Utility Patent?
An examiner is assigned by USPTO, whenever a new application is filed, to search for the invention claims. The prosecution price is highly impulsive and depends upon factors such as the quantity of rejection and office action responses during the examination, if the examiner interview is required etc., and per court hearing charges as asked by your patent attorney, which can reach an average of $10000 based on the different scenario.
What is the Post-Allowance Fee & Maintenance Cost of a Utility Patent?
After, the communication of notice of allowance, utility issue fees should be submitted i.e., $300 to $1200 dependent upon the type of entity that applied for the patent. Further, to keep for patent alive through the lifespan of a utility patent which is 20 years from the earliest filing date, the maintenance fee is paid after specified period, and this amount is also dependent upon the type of entity that applied for the patent. Below is the maintenance fee schedule:
- After, 3.5 years, the maintenance fee paid is $500 to $2000
- After 7.5 years, the maintenance fee paid is $940 to $3760
- After 11.5 years, the maintenance fee paid is $1925 to $7700
Also, an additional surcharge of $125 to $500 must be paid, if a case of late payment of maintenance fee within 6 months arises, and to maintain the patent, a petition for delayed payment has to be filled with an additional cost of $525 to $2100.
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