You have designed something remarkable and are rightfully proud of your accomplishment. Your family and friends are all telling you that you need to apply for a patent so you can protect your brilliant invention. But is a patent the right way to go? Before you make an appointment with a patent professional to learn about how applying for a patent fits in with your particular invention and circumstances, the following information is useful to know.
Who Can Get a Patent?
Under U.S. patent law, any person who invents or discovers any new and useful process, machine, manufacture, composition of matter, or improvement of any of these can apply for patent protection.
You don’t even need to have a prototype of your invention or even understand how or why it works. You just need to be able to describe it in sufficient detail so that it could be constructed.
What Types of Patents Are Available?
You can apply for a utility patent, a design patent, or a plant patent.
A utility patent protects the function of an invention. Utility patents are granted for inventions that reflect a new, useful and non-obvious process, machine, manufactured article, composition of matter, or any new and useful improvements to any of these types of inventions. The term of a utility patent is 20 years from the date of filing. Utility patents are usually more desirable than design patents because of the broader protection generally available to them.
Design patent protection may be desirable if the appearance of the invention is important, otherwise a utility patent protection should be sought. To receive a design patent, the item must be a new, original and ornamental design for an article of manufacture.
Plant patents are sought by those who invent or discover and asexually reproduce any distinct and new variety of plant.
Why Patent Your Invention?
While an experienced patent attorney can advise you as to whether or not your invention meets the threshold criteria for patentability, before beginning the process the first issue you should consider is whether you should patent your invention at all.
The following questions may help you make that decision:
Is there a market for your invention?
It does not make sense to seek patent protection unless your invention is marketable. Ask yourself: would a company be able to profit from your invention, making licensing the invention to them potentially feasible?
Would a patent increase the value of your business?
A patent can increase in value over time. It can also increase the value of your business because it is potentially attractive to investors and/or purchasers.
The Potential Benefits of a Design Patent
A design patent legally protects the ornamental design of a functional item. They protect industrial design, rather than industrial use. Examples of such patents include soft drink bottles, computer icons, and furniture. Unlike a utility patent, a design patent only protects these ornamental features of your invention; therefore, most people would agree that utility patents are more valuable than design patents. For instance, utility patents last 20 years while a design patent expires after just 14 years.
Despite the perceived drawbacks of design patents, there are some very good reasons to consider one over a utility patent. Of course, nothing can replace the guidance and advice that legal professionals can give you. But if you are considering applying for a design patent, the following information is intended to be a brief introduction to the benefits of a design patent. There are drawbacks as well, and those should be discussed with an experienced patent attorney before moving forward with any type of patent application.
Why Would You Consider a Design Patent?
The primary reasons many people decide to move forward with design patents include timing and cost issues, as well as their benefits compared to other forms of intellectual property protection.
- How fast do you want or need the patent to be issued? It can take a very long time to get a utility patent, usually three years or more. Design patents, on the other hand, typically issue in 12 months. The process for a design pattern is, quite simple, less of a headache from start to finish.
- How much are you willing to spend getting through the patent process? Design patents are cheaper to get than utility patents, often by a lot. The out–of-pocket costs of getting the application drafted and paying the attorneys to oversee the process and file the application, is a lot less than with a utility patent. Filing fees are less and there is substantially less back and forth between the examiner and the attorneys, saving design patent seekers loads of money.
- Is Your Choice Between Getting a Design Patent And a Copyright? While design patents might not afford the same amount of protection as a utility patent, they do a better job than copyrights. While copyrights also protect designs, they do not protect designs associated with functionality the way design patents do. Further, design patents enjoy a “presumption of validity,” placing the burden on the other party if someone tries to lay claim to your design. And you are protected not just from others copying your design, but also from anyone creating any kind of close copy that could cause a consumer to be confused.
Benefits of Seeking Legal Advice Prior to Making Your Final Decision
Patents are a complicated area of intellectual property law. There are many factors to consider before seeking any kind of patent protection for your invention or utilitarian design. Consider contacting an experienced patent professional to discuss the options available to you for protecting your invention. A short conference could save you a lot of money and time in the long run.