Utility Patents and Design Patents: You Should Consider Both

When inventors decide to pursue patent protection for their inventions, they typically have a utility patent in mind. A utility patent protects the functionally useful features of an invention that are new and that further would not have been obvious in light of what came before. Utility patents protect against both exact copying of your invention by others, as well as against slightly modified copies of your invention. Design patents, by contract, do not cover functional aspects of your invention. Rather, a design patent protects only the ornamental appearance of your invention. A design patent prevents against copying of the design of your product if the copy is “substantially the same” as the patented design.

Inventors, therefore, often seek to obtain both utility and design patents for the inventions. This is the recommended approach. If your invention constitutes an improvement in technology and functionality compared to what existed previously, utility patent protection is critical to ensure that your intellectual capital is protected. That utility patent will necessarily also protect the design of your invention as long as you claim that design as part of your invention in your application.

Design patents are, however, a good fallback form of protection. Many utility patent applications are never allowed to issue as patents. But you may not know whether your utility patent application will be granted until several years after filing. The allowance rate at the U.S. Patent and Trademark Office for design patent applications is markedly higher. Design patents can be obtained much quicker than utility patents and for a fraction of the cost. And if a dispute arises related to someone infringing your design patent, high monetary awards are still possible.

If you are thinking of applying for a patent, you should consider both utility and design patent protection. Utility patents are the stronger form of intellectual property protection but a design patent may be an excellent supplemental intellectual property asset.

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