Design vs. Utility Patents

The two primary types of patents are design patents and utility patents. Design patents protect just that — the “design”, or form of the product. Utility patents, on the other hand, protect the functioning of the product. For example, if you take out a design patent on your widget invention, nobody can make or sell anything that looks like your widget; however, someone can design something that looks different, but performs the exact same function as your widget — to protect against that, you would need a utility patent. Essentially, the secret sauce of design patents are the drawings that accompany design patent applications, whereas the secret sauce of utility patents is the description of the use or function of the subject matter of the patent. In a way, design patents are not unlike the trade dress protection of trademark law. However, design patents can be easier to obtain than a trade dress designation, and are often easier to obtain than utility patents. This is why some inventors pursue either a design patent or both design and utility patents — design patents are often issued in a fraction of the time that utility patents are, which means lower costs in the form of filing and legal fees. As a result, when inventors don’t want or need the protection of utility patents, design patents can be a quick, inexpensive option. But if the function, not the form, of your invention needs to be protected, you will need to obtain a utility patent.

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