A Patent gives an owner of an invention or design the right to exclude others from making, using, or selling the invention for a specific period of time. There are different types of patents and patent applications, including design patents, utility patents, plant patents, non-provisional and provisional patent applications.  Under U.S. law, for an invention to be patentable it must be new, useful, patentable subject matter and non-obvious. These four requirements are what examining attorneys in the United States Patent and Trademark Office (“USPTO”) use to determine if an invention is patentable.

Utility patents

Provisional patent applications and non-provisional patent applications are both used to protect functional aspects of an invention.  Under United States patent law, a provisional patent application is a legal document filed in the USPTO that allows an inventor to establish an early filing date. The provisional patent application does not become an issued patent unless the applicant files a regular non-provisional patent application within one year. Individuals and businesses can use a provisional patent application to their advantage. A provisional patent application is not as costly to prepare and file as a non-provisional patent application. This is because the process involved in preparing a provisional patent application is less tedious and the government filing fees are less than a non-provisional patent application.

Once a provisional patent application is filed a product can be marked “patent pending.” Patent pending marked on an invention can sway competitors from using the idea. Some businesses and entrepreneurs sometimes use the product’s patent pending status to raise financing or to promote and market the product.

Design patents

Individuals and businesses use design patents to protect any new, original and ornamental designs of their products. Although a purely functional design is not patentable, a design that incorporates functional features can still be patentable if it has ornamental features that can exist independently of its functional features. A design patent does not protect the functional aspects of a design. The functional aspects of a design may be protected with a utility patent.

One of the biggest differences between a design patent and a utility patent is the term, or the period of time a patent may be enforced against others. The term of a design patent is 14 years while the term of a utility patent is 20 years. Another difference is that a design patent is much simpler and easier to draft and therefore is less costly than a utility patent. This is because in most cases a design patent’s claims are embodied in the drawings, which requires less time for a patent attorney to draft.

The drawings are the most important aspects of a design patent. Design patents cover only the elements illustrated as solid lines. Elements shown as dotted lines are not covered. The smaller the amount of solid lines in the drawings, the stronger or broader the patent. Design patent infringement occurs when an object with a design that is substantially similar to the design claimed in a design patent is made, used or sold in the United States without permission. The design does not have to be exact for the patent to be infringed. It only has to be substantially similar.

Communicating your business goals and strategies to your patent attorney will assist you in determining the best approach for your business. Many businesses and inventors in West Palm Beach and Palm Beach use patents and this firm to protect their businesses’ intellectual property, including Riviera Beach based and South Florida Manufacturing Association’s Manufacturer of the Year, Neptune Research, Inc.   The following are just some of the patent registrations and publications that have already been obtained or filed by partners Mark Terry, Esq. and Derek Fahey, Esq., for clients based in Palm Beach County and the City of West Palm Beach.


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