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A
typical patent is known as a utility patent. One
of the sections of the patent code that you should
be familiar with is 35 U.S.C. § 101 ("§" means section),
which defines the requirements that must be met
to obtain a utility patent:
Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of
matter, or any new and useful improvement thereof,
may obtain a patent therefor, subject to the conditions
and requirements of this title.
First, the invention must be "useful." This requirement
is usually very easy to satisfy. Additionally, the
invention described in the patent application must
work in order for the application to be approved
by the PTO. (An invention that does not work is
not useful). Although the PTO rarely makes a specific
study to determine if an invention will work, if
it seems clear to the examiner that your invention
doesn't work, you will have a problem getting your
application approved.
The Section states that a "process, machine, manufacture,
or composition of matter" can be patented. The types
of inventions that mechanical engineers typically
invent usually fit into this category. Examples
might include medical devices, security devices,
and other mechanical devices.
In addition, business methods, medical procedures,
software, and plants can be patented.
Designs can also be patented, and are covered by
a different section of the statute, 35 U.S.C. §
171. Section 171 sets forth the requirements that
must be met to obtain a design patent:
Whoever invents any new, original and ornamental
design for an article of manufacture may obtain
a patent therefor, subject to the conditions and
requirements of this title.
The main difference between a utility patent and
a design patent is that a design patent requires
the design to be ornamental as opposed to functional.
Admittedly, sometimes there is a very fine distinction
between the two terms.
Design patents are usually used to protect product
designs, like the distinctive shape of a water faucet.
Design patents can be very useful for this reason,
but they are not considered as valuable as utility
patents because they do not protect the underlying
concept that makes an invention function the way
that it does. Also, it is easy to create a similar
design to one that has a design patent, because
the infringing design must be identical to the design
in the patent to be considered an infringement.
In other words, a competitor may be able to make
minor changes to the patented design and get away
with it. However, design patents may be worth considering
in some instances because they are generally easier
and less expensive to obtain than utility patents.
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