Chapter 37 - § 37.2 • TYPES OF U.S. PATENTS

• Jurisdiction: Colorado

§ 37.2 • TYPES OF U.S. PATENTS

The United States provides for three types of patents: utility patents,⁷ design patents,⁸ and plant patents.⁹ Each type of patent provides different types of protection. In the case of utility and design patents, a single product may be suitable for concurrent protection by both a utility patent and a design patent (i.e., one type of patent is not exclusive of the other).¹⁰ Similarly, one may obtain both a plant patent and a utility patent for protection of a plant.¹¹

All major industrialized countries have a utility patent system. Other countries, however, have additional types of patent protection, such as utility models in Germany and petty patents in Australia. These other types of patents often differ in the thoroughness with which they are examined and the duration of their term.

§ 37.2.1—Utility Patents

A utility patent protects a "useful" invention. A "useful" invention can take the form of a machine, a process, an article of manufacture, or a composition of matter.¹² Thus, for example, one could obtain a patent for a mousetrap, a process of catching a mouse, or a transgenic cat with enhanced mouse-catching capability. An example of a utility patent is shown in Exhibit 37A of this chapter.

The vast majority of patent applications are directed at obtaining a utility patent. To date, more than 10 million utility patents have been granted by the USPTO; more than 2.5 million of those have been issued over the last 18 years.

§ 37.2.2—Design Patents

A design patent protects an ornamental feature of a product.¹³ For example, the front grill of an automobile, icons used in software program screen displays, the shape of an ornamental design on a tennis shoe (such as a swoosh on the side of the shoe or a non-functional tread design), or the shape of a bottle are each protectable by a design patent. Such ornamental features do not serve utilitarian functions — yet, they do provide a benefit in helping to distinguish the patent owner's product from the product of another. Design patent principles frequently cross over with principles of trademark, trade dress, and copyright law. An example of a design patent appears as Exhibit 37B of this chapter.

When evaluating a design patent that is being asserted against a client, it is important to realize that broken lines merely frame the claimed design — infringement is based on the solid lines of the patent.¹⁴

Practice Pointer
A design patent is a very inexpensive, quick, and easy way

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