Types & Terms of Patents
A patent does not provide the right to make something, and there is no requirement to obtain a patent prior to marketing a product. Rather, a patent provides the right to exclude others from making, using, selling, or offering to sell a product which infringes the patent. A company realizes an economic advantage by selling products at a higher price than might be achieved if a number of competitors sell the product. Additionally, a company may be able to obtain sales by offering features which its competitors cannot offer.
Types of Patents
When most people discuss obtaining a patent, they are generally speaking about a utility patent. However, there are three types of patents that are used to protect intellectual property: utility patents, design patents, and plant patents.
A utility patent is designed to protect a product, an apparatus, a composition of matter, or a method for performing a task. Thus, the focus of a utility patent is ultimately on the function of the patented product.
A design patent, in contrast, is available to protect ornamental features. Thus, a chair which has a new look may be protected by a design patent. It would be very difficult to protect the chair with a utility patent because the function of the chair is not new. Rather, the patentable subject matter is the aesthetic look of the chair.
A plant patent is awarded to a person who has discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state.
Term of Patents: How Long do Patents Last?
Traditionally, utility patents were valid for 17 years from the date of issuance. However, in 1995, the law was changed to have a patent expire 20 years after the earliest effective filing date. A patent owner whose patent application predates June 6, 1995 is able to select from the longer of 20 years from the date of filing or 17 years from the date of issue. Patents based on applications filed after that date expire 20 years from the earliest effective filing date. For example, if a patent was filed on January 1, 2010 and issued on June 30, 2011, the patent owner would receive a patent life of 18 ½ years, as the patent will expire January 1, 2030. However, if the patent did not issue until January 1, 2015, the length of patent protection would only be 16 years.
One limit on the length of a patent term is where the applicant has a previous application which claims very similar subject matter. Occasionally, an examiner will enter an “obviousness-type” double patenting rejection suggesting that the two patents are not materially different in scope. When this is done, the second patent can issue. However, it expires on the same date as the earlier filed application. Thus, there are times when the patent will last less than the statutory term.
A design patent lasts for 14 years from the date of issuance. Unlike utility patents, there are currently no maintenance fees that need to be paid to keep the patent in force throughout its life.
Plant patents follow the same scheme as utility patents. The patent will expire 20 years from the filing date of the application.