Seasoned Trial Attorneys, Exceptional Results

  1. Home
  2.  » 
  3. Intellectual Property
  4.  » Determining the US patent type for your invention

Determining the US patent type for your invention


There are three types of patents the USPTO (US Patent and Trademark Office) issues: utility, design, and plant. The fourth subset of all the patents, a provisional patent, acts as a protective placeholder for one year prior to the official patent filing. Which patent defines your invention or idea is dependent on its intended use and organic status. 


The most common filings in the US are for utility patents. A utility patent protects the invention itself, how it works, and how it functions. Qualifying inventions or ideas must be “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Intellectual property (IP), tractor tires, and bioengineered bacteria all fall into the utility patent category. 

A utility patent traditionally expires 20 years from the earliest filing date, but that date has a certain fluidity to it. New developments during the prosecution, or processing, of the patent, status of related findings, and the length of time it takes the USPTO to grant the final patent can impact the final “earliest” filing date. 

IP patents are most susceptible to a change in the actual patent date. The high velocity of technology development means that these applications are updated as processes evolve, so the final patent may bear little resemblance to the first application. 


Design patents protect how something looks as opposed to how it works. The US Patent and Trademark Office (USPTO) defines design patents as “design for an article, and is inclusive of ornamental designs of all kinds including surface ornamentation as well as configuration of goods.” The USPTO also defines “design” as being organic to the article and unable to exist as simple ornamentation. 

The quintessential example of a design patent is probably the original Home button on the iPhone. Neither could exist without the other, and neither has any use without the other. 

Design patents are usually granted within 15 months of application and are valid for 14 years. 


Plants have been patented since the 1930s when the US Patent Office granted the first patents to prevent replication of genetic materials through roots and cuttings rather than seeds. This grant was during the Depression when the government hoped to promote domestic innovation and a plant breeding industry for food crops, like wheat, corn, and soybeans. Legalized Cannabis is driving an upswing in plant patents, although the USPTO does not provide the breadth of plant protection that the Plant Variety Protection Act (PVPA) offers. PVPA is under the aegis of the US Department of Agriculture and requires a seed sample deposit of 3000 untreated seeds at the National Laboratory for Genetic Resource Preservation. PVPA protection is valid for 25 years, as opposed to 20 for a patent. 

Inventors can apply for utility patents for plant tissue, cells, or clones of their inventions. They can also patent their growing methods.