INTRODUCTION

Utility Patents Vs. Design Patents: Patent owners benefit from both utility and design patents, although there are substantial differences between the two. What your , how much the application procedure costs, and when and whether the US Patent and Trademark Office (Hereinafter referred to as ‘USPTO’) issues your patent will all depend on which is best for your idea. This blog provides an introduction of both utility and design patents and assesses whether patent application is ideal to file for inventions if you are an innovator or entrepreneur seeking the rights and protections that a patent affords.

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UTILITY PATENTS

The utility patent is a form ofp intellectual roperty protection that ensures a person retains complete control over his or her creation. Utility patents account for more than 90% of all patents issued each year. If you invent anything new that is both new and non-obvious, a utility patent is usually the best option. Manufactured products, techniques, and formulations are just a few of the areas that utility patents fall into. Manufactured items can be any "hard" good that has been made, as well as parts of goods and machinery. Processes can include a number of stages to accomplish a goal, such as the steps involved in creating a golf ball or the procedures involved in writing a computer programme. Compositions are made up of several ingredients, ranging from medications to polymers. A granted utility patent protects the inventor or patent rights holder for a period of 20 years from the date the application is filed. Over 7.5 million utility patents have been granted by the government. However, many of them have since passed away. If you receive a utility patent, you'll have to spend $515 to file your claim and $720 to get the patent.

Utility patents are divided into five categories by the US government:

• Matter composition
• Improvement of an existing concept
• Machine
• Manufacture
• Process

Many inventions fit into more than one category. A new iPhone app, for example, is both a machine and a process. The government will only grant a utility patent in one of the five categories, even if a product falls under all five.

DESIGN PATENTS

If your invention isn't functional but has a unique aesthetic, you should consider seeking a design patent to protect the decorative elements. A design patent does not protect mechanical characteristics or processes, but it can be used to protect new manifestations of existing ideas. For example, if you have a concept for a novel lampshade with a unique shape, you would normally seek a design patent rather than a utility patent because lampshades are already well-known and obtaining a utility patent would be challenging.

A design patent protects the appearance of a product, but a utility patent covers the function. There is considerable blurring of that barrier, and design patents have been granted for devices that appear to be useful for all practical purposes. There's a chance that these kinds of design patents will be invalidated in court. As a result, the design must be attractive rather than useful.

A design patent may appear to be of little value because the protection it provides is limited to appearances, which may be easily changed. The ornamental features, on the other hand, do not have to cover the entire item, but simply a piece of it. Thus, regardless of the shape of the box in which it is positioned, the shape of an aperture in a box may be protected by itself. A utility patent is valid for 20 years from the date of filing, whereas a design patent is valid for 15 years from the date of issuance.

What Are the Patent Rules and Procedures?

You must submit a "provisional" application to obtain a utility patent.

• A provisional application is a request for a temporary patent.
• You have one year to submit your official application according to the papers.

• This system does not exist for design patents. Because there is less risk of competition, you file when you're ready.

The expense of utility patents is a stumbling block. They're becoming more costly, and fewer applications are being granted patents. During the 1990s, the government granted utility patents to more than 70% of applicants. Only 44% of applicants receive utility patents today.

The term lengths and approval timeframes for utility and design patents are different.

• Utility patents are valid for 20 years from the first application in the United States. A patent is valid for 17 years from the date of approval. Extensions of more than 20 years are feasible, but they are uncommon.
• Design patents issued before December 15, 2013 are valid for 14 years.
• A design patent issued after that period has a 15-year claim.
• A design patent takes the USPTO on average two years to confirm, while utility patents take more than three years. The USPTO must thoroughly examine them. The organization conducts a prior-art search for design patents. The design has a strong chance of getting a patent as long as nothing turns up.

You can list a design patent as patent pending once you've filed for one. Once the USPTO confirms that it is patented, you can identify it as such.

The patent number identifies the type of patent. A design patent begins with the letter D, whereas utility patents begin with a number rather than a letter.

After you've been granted a design patent, it will remain in effect for the rest of your life. There is no need for you to do anything else. A utility patent, on the other hand, requires three fees to be paid to the US Patent and Trademark Office in order to keep it active. These payments are made four, eight, and twelve years after the utility patent was issued. Your utility patent will lapse if you do not pay these fees.

When a patent expires, the invention becomes available to the general public. The creator loses all rights and abilities at this point. This normally occurs at the end of the patent's term. It might also happen if the claimant fails to pay his or her filing fee.

In other nations, you can submit for both utility and design patent claims. You'll have six months from the date of the American filing to file a claim in another country. However, patent claims are not available in all countries.

How Do You Get a Utility Patent or a Design Patent?

A utility patent application takes more time and effort than a design patent application.

• Demonstrating the invention's one-of-a-kind function.
• Including claim terms, which the inventor uses to explain the item's function. For a utility patent, it's the claim terms that matter.

It's worth noting that both utility and design patents cover the same product. Yes, there are rules in place to prevent double-patenting. This isn't generally an issue because utility and design patents are so dissimilar. An innovator may also seek copyright and trademark protection for his or her product.

Multiple design patents may be required for some products. Each would focus on a different physical aspect of the proposed product. Automobiles, for example, necessitate numerous design patents. Design patents can be up to 90% less expensive than utility patents. The preparation of the drawings is the most expensive part of a utility patent.

The outcome of the design patent claim is determined by the drawings. The US Patent and Trademark Office (USPTO) will have less concerns or issues with the claim because these designs are particular. As a result, legal fees will be lower, and the USPTO will charge fewer fees. A design patent also comes with no maintenance fees, which is a significant savings over utility patents.

Which Patent Is Harder to Get?

All you have to do to get a design patent is show that you've created a one-of-a-kind design. It's simple to demonstrate that you've introduced a new feature to an existing product.

Obtaining a utility patent necessitates more information. Demonstrating that you've created something unique is challenging, as it should be. You must demonstrate that your invention is functional. You must also demonstrate that it is:

• Useful
• Practical
• Beneficial to others.

Any new toaster, for example, is superior to previous generations of toasters. There are timers and toasting levels on the new ones. Though it toasts, the toaster's core function remains the same. A new design patent for a toaster can be obtained by anyone. A red rectangular toaster and a curved white toaster are both distinct models that deserve design patents but not utility patents. To get a utility patent, you'd have to come up with a new way to make toast.

While obtaining a utility patent is more difficult, it provides more protection. The patent system has higher protections for utility patents. The drawings aren't the only thing covered by the patent. The only thing a design patent protects is the image, which becomes prior art.The scope of coverage is substantially more limited.

When should a Design and a Utility Patent Application be filed?

A design patent plus a utility patent can sometimes be used to protect an invention. If your innovation has a one-of-a-kind function or structure, as well as a one-of-a-kind ornamental design, you might consider filing both a design patent application and a utility patent application. It can be difficult to file both, so consult an attorney first to ensure that you follow all of the rules and processes appropriately. While they're being handled at the Patent Office, both applications will show as patent-pending.

If buyers are satisfied with a competitor's product that has a different appearance than yours, a design patent may not provide a significant competitive advantage. Design patents may be beneficial for products when the customer's look is important in making a purchase.

It's critical to decide what's more significant when determining whether to seek a utility patent or a design patent. Do you want to use design patent protection to prevent potential competitors from copying your product's visual appearance, or would you rather use utility patent protection to prevent them from copying your functional features?You should file a utility patent application and a design patent application for your product if you wish to prevent competitors from replicating both the functional functionality and the visual look.

Difference between Utility Patents and Design Patents

The claim scope is one of the most significant distinctions between utility and design patents. The phrase "claim scope" refers to the level of protection provided by a patent to its owner. The claims in a utility patent are a set of limits that tell others what is protected. The extent of protection for a design patent is completely determined by the drawings. While both a design and a utility patent may use the same drawings, the utility patent's protection is based on the language used to describe the drawings. A coffee cup design, for example, would simply be an exact replica of the coffee cup depicted in the drawings. However, a utility might use terms like "a container with a bottom wall, a perimeter wall, and a handle attached to the perimeter wall." This example should demonstrate that the utility patent is not dependent on the shape of the cup, and so provides considerably greater protection. Even if a rival creates a product that looks different, the utility patent may still be infringed. In order to get around a design patent, a competitor could use the same function and structure but give it a new look.Another distinction between utility and design patents is the method for determining infringement. The design patent drawings and the accused product for design patent infringement are compared side by side. This comparison is meant to see if an objective observer would notice a significant similarity between the two designs. The likeness should be enough to fool the viewer into thinking one product is the other and purchasing it. In order to evaluate if a utility patent has been infringed upon, one must examine the patent claims to see if all of the claims' limitations are present in the accused product.

Conclusion

Another distinction between utility and design patents is the method for determining infringement. The design patent drawings and the accused product for design patent infringement are compared side by side. This comparison is meant to see if an objective observer would notice a significant similarity between the two designs. The likeness should be enough to fool the viewer into thinking one product is the other and purchasing it. In order to evaluate if a utility patent has been infringed upon, one must examine the patent claims to see if all of the claims' limitations are present in the accused product.

Author: Anuja Saraswat - a student of NMIMS Kirit P. Mehta School of Law (Mumbai), in case of any queries please contact/write back us at support@globalpatentfiling.com or Global Patent Filing.