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The United States Patent and Trademark Office issues three kinds of patents:
- Utility patent: This patent is the type most people think of when they talk about patents — protection for technological advances and innovation. A utility patent applies to the way something is made, how a device operates, or a process for accomplishing some utilitarian purpose. The subject of a utility patent must result from human activity (and not be a product of nature). It can be any one of the following or an improvement on any of them:
• A manufactured article: Such as a corkscrew or a stapler.
• A machine: For example, a photocopier or a computer.
• A composition of matter: Such as a cough medicine or an adhesive.
• A process for making or doing something: For example, a method for refining sugar or a protocol for managing investment accounts.
The invention can also be a combination of these things. A new use of an old machine can be patented as a process.
- Design patent: Covers a new and original ornamental shape or a surface treatment of a manufactured article. The shape or ornamentation can have no functional utility other than an aesthetic one. For example, the cut of a dress or the shape of a table lamp or an automobile body may be protected by a design patent.
- Plant patent: Applies to characteristics of a new plant that has been asexually reproduced (by grafting or selective cuttings — without seed manipulation). A new variety of plant, no matter how reproduced, can also be the subject of a utility patent.
 | You can't patent a law of nature, such as a mathematical theorem, or a physical phenomenon or property, even if you are the first to discover or articulate it. |
Claiming your rights as a patent owner
Under your patent, you can sue anyone who manufactures, sells, markets, or even uses your product without your permission. It doesn't matter that you, as the patent owner, might be excluded from all of those activities yourself under someone else's patent — you still can sue, which can lead to the following conundrum.
Say that Jane has a utility patent covering a widget. You've developed a modification to the widget that makes it more efficient and cheaper to produce and have been granted a patent covering the improvement. Jane wants to modify her widget according to your invention, but can't do so without your permission. You, on the other hand, can't make or sell the improved widget without her permission. The solution is to get together and strike a deal. Here are your options:
- You give her the exclusive right to use your improvement for a fee.
- She gives you permission, for a fee, to make and sell the improved widgets.
- Each of you agrees not to sue the other and goes into business using the other's invention.
If you own a design patent, your rights are more restricted. You can't prevent others from using your patented ornamental design on an article unrelated to your original one. However, you can prevent others from making the same or a similar article adorned with a similar styling or decoration. It doesn't matter that the article itself is very common and may be in the public domain.
Say you've patented a new style of silverware that has cylindrical handles with garlands of oak leaves spiraling over their entire lengths. You can prevent others from using the same design on forks, spoons, knives, and serving pieces. If the judge likes you, he may let you convince him that the same style applied to other household items, such as letter openers, hairbrushes, and combs, would be an infringement of your patent rights. However, you can't prevent someone else from using your design on columns, fountains, and other things that aren't commonly purchased together with or from the same retail outlets as silverware.
A plant patent gives you the right to exclude others from asexually reproducing, selling, or using the plant. It doesn't prevent creation of the plant by fertilization and seeding (sexual reproduction).
Tracing a patent's life span
Each type of patent has a different life span. Here are the details:
- Utility patent: The life span of a utility patent is determined by the application filing date:
• A utility patent filed before June 8, 1995 will remain in effect until the 17th anniversary of its issue date.
• A utility patent filed on or after June 8, 1995 is good until the 20th anniversary of the earliest priority date claimed by the applicant. The priority date can be the filing date of the application or the filing date of a prior domestic or foreign application that disclosed at least part of the same subject matter. A priority date based on a provisional patent application doesn't count.
- Design patent: Granted for a term of 14 years from its issue date.
- Plant patent: Determined in the same way as for a utility patent.
A patent can expire before its term if it's declared invalid by a court, recalled by the Patent Office, surrendered or dedicated to the public by its owner, or cancelled for failure to pay one of the periodical maintenance fees.
The term of a patent may be extended beyond the timeframes just listed under specific circumstances, usually to compensate the owner if the government significantly delayed the application process while, for instance, reviewing a decision of the patent examiner or getting the invention approved for sale by the Food and Drug Administration.
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