What is the difference between a utility and design patent?

Glenn W. Peterson

If you are seeking a patent in California, you will have to first decide what type of patent to pursue. While this may seem easy, the difference between a design patent and utility patent may cause you some confusion. The U.S. Patent and Trademark Office defines utility patents as covering the function of an invention, whereas design patents cover the look of an invention. You must choose the correct patent type or your application could be rejected.

Utility patent applications can include more than one claim. They are valid for 20 years from the time the application is filed and may be published by the USPTO. In addition, utility patents are subject to maintenance fees that you must be paid on a regular schedule to keep the patent protection. There is also the option to file a provisional application, which will give you an early filing date and allow you time to gather the required fees or information you need to file a nonprovisional application.

On the other hand, you can only have one claim if you file for a design patent. They last for 15 years from the filing date and are not subject to publication. Unlike utility patents, you do not have to pay any maintenance fees to keep your design patent valid. However, you cannot file a provisional application for this type of patent.

Both types do follow the same general rules that apply to all patents. You must meet all requirements to file either type, and you have to submit the required fees and documentation in order to secure either of them. Both types go through a review process where the patent is either accepted or rejected. In addition, for some inventions, you may need to file for both types of patent protection. This information is only intended to educate and should not be interpreted as legal advice.