Utility Patents: The Basics

A patent is a right granted to inventors that prevent others from using, making, or selling their inventions for a certain period of time. There are three types of patents available for inventions:

• Design patents protect the appearance of an object.
• Plant patents protect the discovery and asexual reproduction of new and distinct plants.
• Utility patents are the most common type of patent. They protect inventions of products or processes. You can also get one for improvements to existing products or processes.

Whether you want to obtain a design, plant, or utility patent, you must file the application with the United States Patent and Trademark Office (USPTO). The U.S. Patent and Trademark Office then reviews the application to determine if the invention is eligible for patent protection.

This article explains things that can qualify for a utility patent, as well as a brief description of the utility patent application process.

What Is a Utility Patent?

A utility patent is available for an invention or discovery of a new and useful machine, manufacture, composition of matter, or process. This patent is also available for useful improvements to an existing machine, manufacture, composition, or process.

• A machine includes anything that is generally considered a machine, such as a computer or a tractor.
• A manufacture refers to goods that are made or manufactured.
• A composition of matter is a chemical composition that can include new chemical compounds as well as mixtures of ingredients.
• A process is an act, method, or process of doing something, primarily including technical or industrial processes.

Utility patents provide inventors with exclusive rights to make, use, and sell their inventions for typically 20 years after the patent filing date.

Checklist for Utility Patents Application Filings

• Is the utility invention:
• A process or method?
• A machine?
• An article of manufacture?
• A composition of matter?
• An improvement of an invention that fits within one of the first four categories?
• Useful? Even some trivial usefulness satisfies the utility requirement.
• Novel? Different from all previous inventions in some important way.
• Nonobvious? Is it a surprising and significant development to somebody who understands the technical field of the invention?

The Difference Between Utility and Design Patents

A utility patent protects how an object works and is used, while a design patent protects how an object looks. If both the utility and the ornamental appearance of an object are new inventions, the object can receive both a design patent and a utility patent.

Although these two types of patents provide legally separate protection, it's not always easy to separate a particular object's ornamental design and utility. It's important to ensure you file for the correct patents for your invention to receive full patent protection.

Filing a Utility Patent Application

Two types of applications are available for utility patents:

• Provisional
• Non-provisional

A provisional patent application can be filed if the applicant needs more time to figure out the details and specifics of an invention, yet still wants some protection while they figure it out. This type of application is temporary, as an applicant has one year from the filing date to submit a corresponding non-provisional application.

A non-provisional utility patent application requires a lot of detailed information about the invention. The information needed includes:

• A description and claim of the invention
• Drawings
• A declaration or oath by the inventor

An applicant must also pay filing, search, and examination fees along with the application. Under the Patent Cooperation Treaty (PCT), an applicant can also file an international application for a patent.

The non-provisional patent application is the official document to file for a patent. This application begins the formal examination process to determine if the invention is eligible for patent protection.

Utility Patent Cost

There are various costs associated with obtaining patent right protection when filing a patent application. The cost to file a utility patent application with the USPTO varies depending on the entity status of the applicant. A micro-entity is a solo inventor, small business, or nonprofit and requires a certification to qualify for reduced fees.

• Utility Search Fees
  • Large Entity - $700
  •  Small Entity - $280
  •  Micro Entity - $140
•  Examination Fees
  •  Large Entity - $800
  •  Small Entity - $320
  •  Micro Entity - $160
•  Application Fees
  •  Basic filing fee (paper filing)
    •  Large Entity - $320 plus a non-electronic additional fee of $400
    •  Small Entity - $180 plus a non-electronic additional fee of $200
    •  Micro Entity - $64 plus a non-electronic additional fee of $200
  •  Basic filing fee (electronic filing fee)
    •  Small Entity - $64
•  Maintenance Fees for utility patents are due at various times.
  •  3.5 years and range from $400 to $2,000
  •  7.5 years and range from $752 to $3,760
  • 11.5 years and range from $1,540 to $7,700

The price of the maintenance fees depends on the year they are due and the entity size. The USPTO updates the full chart of maintenance fees, surcharges, and other miscellaneous patent fees.

Get Legal Advice From a Patent Lawyer

Intellectual property protection is vital, whether you're a small business owner or an entrepreneur with a startup company. Patents can be a complicated area of law. Incorrectly filing a patent application can result in a denial of your application or not receiving full protection for your invention. 

If you have questions about utility patents or would like help filing a utility patent application, contact an experienced patent attorney for guidance.

For more information and resources related to this topic and other forms of intellectual property rights, please visit FindLaw's section on Intellectual Property.