Black’s Law dictionary defines “utility patent” as “the customary type of patent issued to any novel, non-obvious, and useful machine, article of manufacture, composition of matter or process.” A utility patent is one of three separate types of patents that the United States Patent and Trademark Office (USPTO) can award inventors, with the other two types of patent being: (1) a design patent, which protects only the way a tangible product looks (see also Design Patents 101); and (2) a plant patent, which protects a new variety of asexually reproducible plant.
A patent for an invention is the grant of a property right to the inventor, issued by the Patent Office. The right granted by the Patent Office, in the language of the statute and of the grant itself, is “the right to exclude others from making, using, offering for sale, or selling” the invention in the U.S. or “importing” the invention into the U.S. When the patent obtained is a utility patent the rights obtained cover the way the invention is structured and functions, with exclusive rights being owned by the inventor even if the allegedly infringing product looks different.
Generally speaking, a utility patent will have a term that begins on the date the patent issues and ends on the date that is twenty years from the date the application for the utility patent was filed in the United States. If the patent application that ultimately issues contains a specific reference to an earlier filed U.S. or international application, the term ends twenty years from the filing date of that earlier patent application. This patent term for utility patents is referred to as the “twenty-year term.”
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It is, however, possible that a utility patent will last longer than this twenty years. For example, if Patent Office interjects delay into the patent examination process the patent owner will receive additional patent term added. Further discussion of the topic of additional patent term, whether by patent term extension or patent term adjustment, is complex and goes beyond the scope of this article. See MPEP 2710 and MPEP 2733.
To obtain a utility patent a utility patent application must be filed at the U.S. Patent Office. Many inventors will choose to start the process toward obtaining a utility patent by filing a provisional patent application first and then within 12 months filing a non-provisional utility patent application. Whenever you hear the term “provisional patent application” you should generally be thinking about a utility patent application because you cannot file a provisional patent application for a design. In other words, design patent applications and provisional patent applications are unrelated. More specifically, you cannot claim priority to a provisional patent application when you file a design patent application.
In the previous paragraph the term “non-provisional utility patent application” is used. This may seem unnecessarily redundant, and through common usage it may be. Generally speaking when most inventors talk about a non-provisional patent application they are referring to a utility patent application. Technically, however, design patent applications could also be characterized as being non-provisional patent applications, and so too could plant patent applications. Most inventors are not inventing asexually reproduced plants, and in fact last week there were only 31 plant patents issued and since the 1930s there have been fewer than 28,000 plant patents issued all total. Because you cannot file a design provisional application, almost universally when a distinction is being made between provisional patent applications and non-provisional patent applications the conversation is about utility patents.
There is much more to learn about patents and the patent application process, from basic information about whether you need a patent, to patent drafting techniques. In addition to beginning with Invention to Patent 101 – Everything You Need to Know to Get Started, I specifically recommend starting with these tutorial articles:
- Inventing Strategy 101: Laying the Foundation for Business Success
- Patent Searching 101: A Patent Search Tutorial
- A Beginner’s Guide to Patents and the Patent Process
- Requisites of a Patent Application
- Patent Drafting 101: The Basics of Describing Your Invention in a Patent Application
- When is an Invention Obvious
- Understanding Obviousness: John Deere and the Basics
- Invention Basics Archive