Utility, Design, and Plant Patents
A patent is a type of intellectual property related to inventions. A patent allows their owner(s) to exclude others from making, using, or selling the patented invention. There are three basic types of patents: utility, design, and plant patents. When people think of patents, they generally refer to utility patents, and for a good reason. In 2019, the United States Patent and Trademark Office (“USPTO”) issued a total of 390,499 patent grants. Utility patents were by far the most popular type of patent granted during that year at 90.8% of those granted while design patents and plant patents made up 8.9% and 0.3% of this total respectively. This article will explore each of these patent types and discuss their respective requirements.
Utility patents cover inventions that are directed to new and useful machines, processes, articles of manufacture, or compositions of matter, or any new and useful improvement of the aforementioned. The path towards a patent grant typically begins with the filing of a non-provisional application, the content of which includes a specification, claims, and drawings. The specification is a written description that discloses to the public how to make and use the invention. The claims set forth the scope, or rather the boundaries, of the invention, which determines the coverage of the patent’s exclusionary rights. Finally, the drawings illustrate the invention and are typically represented as black and white line drawings. While the USPTO only requires the specification to confer a filing date to the non-provisional application, it is highly recommended that the non-provisional application is accompanied by a set of claims and professional drawings to avoid any new matter issues being raised during its examination. Alternatively, one may file a provisional application first to obtain the earliest filing date as possible and then file a non-provisional application within one year that claims priority to the provisional application. This path results in the non-provisional application enjoying the earlier filing date of the provisional application.
The term of a utility patent is 20 years from the earliest effective filing date, which is most often the filing date of the non-provisional application. See 35 U.S.C. § 154. If a provisional application is filed beforehand and a non-provisional application claims priority to the provisional application, then the patent term runs from the filing date of the non-provisional application provided that the non-provisional application eventually passes examination and issues as a patent. Maintenance fees are associated with utility patents and must be paid to maintain a patent in force beyond 4, 8, and 12 years after the date of the grant. Failure to pay the appropriate maintenance fees will result in the expiration of the patent.
Design patents cover the visual ornamentation of an article of manufacture. To put it simply, design patents cover non-functional visual aspects of an object (i.e. how an object looks). To obtain a filing date for a new, original, and ornamental design, the design patent application requires a specification and drawings. The drawings must contain a sufficient number of views to constitute a complete disclosure of the appearance of the design. Furthermore, the design application should also include a single claim that follows formalistic language as set forth by the USPTO. See 37 C.F.R. § 1.153. The scope of a design patent is defined by its drawings (and its claim in certain situations). The term of design patents is for 15 years from their respective grant dates. Furthermore, there are no maintenance fees associated with design patents.
Plant patents cover distinct and new variety of plants that reproduced asexually, which include cultivated sports, mutants, hybrids, and newly found seedlings. Asexual reproduction includes plant reproduction by means other than seeds, such as by the rooting of cuttings, by layering, budding, grafting, inarching, etc. See MPEP § 1601. Furthermore, plants that are capable of sexual reproduction are not excluded per se from a plant patent if they have also been asexually reproduced. However, tuber propagated plants or plants found in an uncultivated state are excluded from plant patents. A typical application for a plant patent includes a specification, drawings, and one claim. The specification should include a complete and detailed description of the plant that is sought to be patented, distinguishing characteristics over related known varieties, origin or parentage of the plant, genus and species designation of the plant, disclosure of the location or place where the plant was discovered, and the manner which the plant was asexually reproduced. Sometimes, the USPTO may require the applicant to furnish specimens of the plant for further study and inspection. See 37 C.F.R. § 1.166. The drawings should disclose all of the distinctive visual characteristics of the plant, and may be in color, particularly if color is a distinguishing characteristic of the new plant variety. The term of a plant patent is the same as the term for a utility patent: 20 years after the filing date of the application. However, unlike utility patents, plant patents do not have maintenance fees.
Disclaimer: This post is for general information only, and thus does not serve or represent any legal advice. No attorney-client relationship is formed.
