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What type of patent application is best?

What type of patent application (design patent application, provisional patent application, or regular utility patent application) is the best?

A design and utility patent application each protect different aspects of an invention. A utility patent protects the function of an invention. A design patent protects the ornamental appearance of an invention. If an invention only has a unique function (no ornamental appearance), then the inventor can file a utility patent application (or provisional patent application). If an invention only has a unique ornamental appearance, then the inventor can file a design patent application.

But some inventions have both, and can be protected by a design patent and/or a utility patent. That is, there is a legal basis to file both types of patent applications. So which one should an inventor file? There are pros and cons to both. For example:

  • A design patent is fairly limited, in that it only protects the specific design shown in the drawings (and perhaps minor variations). A design patent often issues faster and costs less.
  • A utility patent is generally considered broader, because it protects various functions regardless of how it looks. But a utility patent application may take longer to issue as an enforceable patent, and costs more.

If budget is not a consideration, for maximum protection an inventor can file both a design patent application and a utility patent application. Often though, budget is a major consideration. With a limited budget, the inventor has to make the decision what is more important to protect (utility or design) and then pursue the appropriate route (provisional, utility, or design). This is called a “business decision.”

Whether to file a design patent application, a utility patent application, or both, is a business decision the inventor makes based on these and other factors. A patent attorney can answer questions about any of these options, and help the inventor make a decision that is appropriate on a case-by-case basis.

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Mark Trenner is an attorney licensed in Colorado and to practice before the United States Patent and Trademark Office. Mr. Trenner has over 15 years experience in the intellectual property field. He started Trenner Law Firm 10 years ago to serve independent inventors, small and medium size businesses, and large corporations. General Information Only - Not Legal Advice.

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