The Only Three U.S. Patents

July 3, 2019

In the United States, there are three different types of patent grants: a utility patent; a design patent; and a plant patent.
A utility patent may be granted for the invention or discovery of any new and useful process, machine, article of manufacture or chemical composition, or for any new and useful improvement of such.

A design patent may be granted for a new ornamental design for an article of manufacture, so long as the design is not dictated by functional considerations.
Because a utility patent protects the way an invention works and a design patent protects the way an invention looks, it is entirely possible that both a utility and design patent may be obtained on the same invention.

Finally, a plant patent may be granted for the invention or discovery and asexual reproduction of a distinct, new plant other than a tuber or a plant found in the wild. Means of asexual reproduction include cuttings, layering, budding, and grafting but do not include growth from a seed.
The U.S. patent process is currently taking up to three years or more for the application to work its way through the USPTO, and you should budget on the order of $5,000 to $10,000 to apply for and be awarded a U.S. patent.

There are other options that can be explored relating to, at one extreme, deferring a portion of the expected costs for up to a year by filing a U.S. provisional patent application and, at the other extreme, proceeding directly to an international patent application at even greater cost if protection outside of the U.S. is important to you, all depending, of course, on your priorities and budget. There are always ways to possibly accelerate a U.S. patent application. Our role will be to explain the process and costs for each of your options so that you can make informed decisions.

We realize that the cost and time-frame of obtaining a patent may be daunting, but our fees are actually on the low end of what you’ll find out there. And if any idea you have is truly unique and marketable, then your costs in obtaining patent protection should be money well spent.

So, if you are interested in pursuing patent protection on your invention, or simply would like more information, we invite you to call or email us to schedule a free initial consultation, during which we can explain the patent process to you in more detail and answer any follow-up questions that you may have.
In the meantime, we caution you not to make any disclosure of your invention without first consulting an attorney. If you have already publicly disclosed or sold your invention, please be aware that the U.S. patent laws require that any patent application on the invention be filed within one year of such public disclosure or all patent rights could be forfeited. Even this one-year grace period is not available outside the U.S., where your earliest filing date must predate any public disclosure anywhere in the world. You should contact us or another attorney as soon as possible if you have any questions or concerns about these issues.

Please also be aware that, as of March 16, 2013, the United States (like the rest of the world) is now on a “first-to-file” patent system (technically, “first-inventor-to-file”). Thus, it is effectively a race to the Patent Office for any new inventions you may conceive (or any inventions you’ve already conceived but have not yet filed an application on). In other words, inventors are no longer able to sit on or take their time with an invention and simply rely upon an earlier date of conception as against any third parties that may independently come up with a similar invention, as was once the case. Instead, it now essentially comes down to who files their application (provisional or non-provisional) first.
With that in mind, your patent philosophy should be, “file early and file often.” In other words, for any new invention (or improvement on an existing invention) you might conceive, you should strive to file a patent application (provisional or non-provisional) as soon as possible so as to lock in the earliest filing date possible as against all third parties. The longer you wait, the greater the likelihood becomes that a third party might beat you to the Patent Office (or even simply publicly disclose information that could count as prior art against your own invention).

Of course, not every invention you may conceive will likely be patentable – so patentability searches and opinions are still an advisable first step before racing to the Patent Office for any given invention. But filing the more economical provisional patent application first and then using the year of “patent pending” protection such an application would buy you for patentability studies (as well as market research, further product development, fund raising, and the like) certainly can be an effective strategy.

The bottom line is that we strongly encourage you to get in touch with us as soon as possible whenever you conceive of a new invention or an improvement on an existing invention (and before any such invention is commercialized or otherwise publicly disclosed) so that we may advise you further as to what steps should be taken to increase your chances of being able to obtain patent protection.

-Jeromye Sartain