Types of patents explained

This is an over-simplification, but for the purposes of this website, it should be sufficient to give you a general understanding without bogging you down in details.  There are generally two different types of patents – utility patents and design patents.

Utility Patents

Utility patents are the more common of the two types, and they are what you think of when you think of a patent.  Utility patents cover things (for example: bicycles, cars, computers, cell phones, etc.) and how those things operate.  Generally speaking, utility patents focus on the functional elements of an object, as opposed to the aesthetic elements of that object.

An issued utility patent grants the owner of the patent the right to exclude others from making, using, or selling products covered by the issued patent.  In other words, a patent gives you the right to prevent others from doing something, as opposed to giving you the right to do something. The scope of the patent is determined by the patent’s claims.

Design Patents

Design patents, on the other hand, cover how things look (for example: the specific shape and design of something).  Generally speaking, design patents focus on the aesthetic elements of an object, as opposed to the functional elements of that object.  Design patents are much less common than utility patents, so we’re going to focus on utility patents.

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With this basic understanding of the types of patents, let’s next look at how you get a patent.  Regardless of what type of patent (utility vs. design) you want, you have to file a patent application.  There are generally two different types of patent applications – provisional patent applications and non-provisional patent applications (which we generally refer to as “full” patent applications or “normal” patent applications).

Explained: Types of Patent Applications

Provisional Patent Application

A provisional patent application (often referred to simply as a “provisional”) is the easiest—and generally the cheapest—type of patent application to file.  A provisional does not give the person filing it any rights. Instead, a provisional application establishes a priority date for your invention, but this is a very important thing to do because the U.S. uses a “first inventor to file” system, which means that the sooner you can file your application, the better.  You can think of a provisional as essentially “holding your place in line” or “planting your flag in the sand.”

The most important thing to understand about a provisional is that the Patent Office will not “examine” it, which means that they will not look at it and decide whether or not to give you a patent.  The Patent Office only examines non-provisional (or “full”) applications.

Provisional patents do not require claims, but many patent attorneys will nevertheless include a rough set of claims with a provisional patent application.  Claim drafting is one of the most complicated aspects of patent applications, and you should seek an experienced patent attorney to assist you in drafting claims.  If you’re wondering what a provisional application costs, take a look here.

Non-Provisional Patent Application

A non-provisional patent application (sometimes referred to as a “full” application) is the type of patent application that the Patent Office examines to determine whether to issue a patent.  Unlike a provisional patent application, a non-provisional patent application must include claims. In fact, the claims of the patent application are what the Patent Office actually examines when making the patentability determination.

You can file a non-provisional patent application that claims priority to a provisional patent application.  This is how you take advantage of that flag you planted in the sand with the provisional application. A non-provisional that claims priority to a provisional must be filed within one year of the provisional’s filing date.

You can also file a non-provisional patent application without first filing a provisional application.  If your product is finalized and ready to go, you can save time and money by skipping the provisional application and going straight to the non-provisional.  If you’re wondering what a non-provisional application costs, take a look here.