One of the most typical issues we get from new business owners is whether they should pursue a design or utility patent. While each concept is unique, some broad rules might assist you in selecting the best patent application. To start, firstly you must be clear about what is utility patent and Design patent.
What is the nature of your product in general?
Is your product computer software? Is there any hardware included? Are you considering selling a more basic item, such as real consumer goods with a few distinctive features? Is your concept related to a technique or a process?
To determine whether you should pursue a design patent or a utility patent, consider the overall nature of your product. A design patent application is likely a viable alternative if the product’s look is distinctive and main. A utility patent may be the best option if you wish to protect functioning. It may be necessary to file both utility and design patent applications in some instances. However, we’ll need to go further into the novel features to determine which patent filing would be most appropriate.
Are your concept’s unique elements more utilitarian or visual?
The primary question is functionality vs. aesthetics, but you also need to pose it in terms of your concept’s original characteristics. To put it another way, the question isn’t whether your product is functional in general. It all depends on whether your distinguishing qualities are mostly aesthetic or useful. It is conceivable to have a generally functioning product while also filing a design patent application for some of the product’s decorative aspects.
Here are some examples in which utility patents may be appropriate:
- products that result in additional useful benefits which are lacking or deficient in prior products
- products that address unresolved needs
- processes that reduce costs, increase speed or make manufacturing more efficient
- mobile apps with unique functionalities
- products with combinations of hardware and software
- products that help businesses become more efficient, profitable, effective, or smarter
- products that converse energy or natural resources
If your distinguishing qualities are mostly visual, you should apply for a design patent. Here are some examples of why design patents could be useful:
- products with cool or weird looking features
- product with an aesthetically unique or different appearance
- two-dimensional graphic design on a product
- graphical user interface (GUI)
- component of an overall product or system, where the component is visually unique
- toys, hobbies, crafts, and gadgets that look different
You may need to file for both design and utility patents if your distinctive features are both aesthetic and functional. For example, owing to structural changes, you may have a product for newborns and children that is more durable or lighter. A utility patent could be able to cover those structural variations. At the same time, your product can be qualified for design patent protection due to its visual appeal.
Choosing design patents above utility patents is a common error.
One of the most typical mistakes I see is when a company believes that a design patent would protect a new product completely, only to discover later that the functional elements are unprotected. Budget constraints are frequently the driving force behind these decisions.
Entrepreneurs on a budget may avoid this blunder without spending a lot of money upfront. To keep the possibility of utility patents open, file a provisional patent application and give yourself a year to find funding.
Ignoring design patents is a common blunder.
Although a product may be useful, it may also have characteristics with distinctive decorative looks. Even if your distinctive characteristics are purely utilitarian, neglecting design patents might result in you missing out on low-hanging fruit. Design patents are usually less expensive, simpler, and quicker to obtain. While you wait for your utility patent to be awarded, having one or more granted design patents might help you fight knockoffs on e-commerce sites.
Remember that components of a larger product may be eligible for design patent protection. In the United States, innovators can claim only a component of a larger product by drawing broken lines to illustrate the context and solid lines to highlight the area they want to protect.
Waiting too long to register a patent is a common blunder.
Waiting too long to file a patent is the same as not filing one at all. That may be acceptable if you have determined that patent protection is not appropriate for your product. If you decide not to pursue patents, my advice is to make this decision sooner rather than later and to understand why patents are not appropriate for your product.
You don’t want to put off addressing the question. You may already be too late if patents are an afterthought. Keep in mind that inventors in the United States have a one-year grace period in which to file for a patent. If there are any grace periods for international patents, they will be determined by the patent laws of each foreign country.