What Type of Patent Application should I use to Protect my Invention?

A patent gives its owner the legal right to exclude others from making, using, selling, or importing an invention for a limited amount of time in exchange for publishing a description of how to make the use the invention.  To obtain a patent, a patent application must be properly filed and prosecuted (negotiation phase) before the U.S. Patent & Trademark Office (USPTO).  The probability of obtaining a patent increases dramatically when an experienced patent attorney is utilized to prepare, file, and prosecute the patent application before the USPTO.

In the U.S., there are two types of patent applications that are utilized: a utility patent application and a design patent application.

The utility patent application is utilized to protect the useful structure and functionality of an invention.  The invention must be useful, new, and non-obvious over the prior art.  Typically, the utility patent application includes detailed drawings (with numbered components) illustrating the structure and functionality of invention, and has a detailed specification describing how to make and use the invention.  Further, the utility patent application has claims (paragraphs) that define the scope of protection of the invention.  Utility patent applications are utilized to protect structural, mechanical, electrical, electronic, software and chemical inventions.  There are two types of utility patent applications: a provisional patent application and a non-provisional patent application.

The provisional patent application has a one-year life span and is utilized when the inventor wants additional time to further develop an invention or to determine whether there is a market for a product—before filing a non-provisional patent application.  The provisional patent applications gives the applicant a priority date which is important because the U.S. is a first-to-file country—but the application is not formally examined by a patent examiner and will not issue into a patent.

The non-provisional patent application gives the applicant a priority date and the application is formally examined by a patent examiner and can issue into a patent.  Also, the non-provisional patent application can obtain the priority date of a previously filed provisional patent application if it is filed before the provisional patent application expires.

The design patent application is utilized to protect the ornamental exterior look of a product.  Typically, the design patent application includes drawings having black lines that illustrate the exterior of the product.  The scope of protection is determined by what is shown in the figures.  For relatively simple structures, it is often a valid approach to file a design patent application.