Utility patent
Also called utility patents, US utility patent, nonprovisional utility patent, patent for invention
Utility patent is the US patent type that may be granted to anyone who invents or discovers a new and useful process, machine, article of manufacture or composition of matter, or any new and useful improvement of these1,2. It is one of three US patent types, alongside design and plant patents1.
In general terms, a utility patent protects the way an article is used and works, while a design patent protects the way an article looks3. A utility patent is granted subject to the conditions and requirements of the Patent Act2.
The three US patent types
The USPTO says there are three types of patents: utility, design and plant1.
| Type | What it protects | Term | Maintenance fees |
|---|---|---|---|
| Utility | A new and useful process, machine, article of manufacture or composition of matter, or a new and useful improvement of these (35 U.S.C. 101)2 | Begins on grant and ends 20 years from the filing date in the United States, or from the earliest filing date of a related application claimed under 35 U.S.C. 120, 121, 365(c) or 386(c) (35 U.S.C. 154(a)(2))6 | Due 3 years and 6 months, 7 years and 6 months, and 11 years and 6 months after grant. If unpaid within a 6-month grace period, the patent expires (35 U.S.C. 41(b))7 |
| Design | A new, original and ornamental design for an article of manufacture (35 U.S.C. 171)8. It protects only the appearance of an article, not its functional features1 | 15 years from grant for applications filed on or after May 13, 2015, and 14 years from grant for earlier applications9 | None: no fee may be established for maintaining a design or plant patent in force (35 U.S.C. 41(b)(3))7 |
| Plant | A distinct and new variety of plant that is asexually reproduced, other than a tuber propagated plant or a plant found in an uncultivated state (35 U.S.C. 161)10 | 20 years from the application filing date in the United States, or from the earliest related application claimed1 | None7 |
Both a design patent and a utility patent may be obtained on an article if the invention resides in both its utility and its ornamental appearance3. See Design patent.
What a utility patent application has to satisfy
- Eligible subject matter. The claimed invention must fall within one of the four statutory categories in 35 U.S.C. 101: processes, machines, manufactures and compositions of matter11. Laws of nature, natural phenomena and abstract ideas are not patentable12.
- Utility. A claimed invention must have a specific and substantial utility that is credible13.
- Novelty and non-obviousness. The claimed invention must be new under 35 U.S.C. 102 and not obvious under 35 U.S.C. 10318,19. See novelty and non-obviousness.
- Specification. The specification must contain a written description of the invention and of the manner and process of making and using it, in terms that enable a person skilled in the art to make and use it, and set forth the best mode contemplated by the inventor (35 U.S.C. 112(a))4. Failure to disclose the best mode is no longer a basis on which a claim may be canceled or held invalid or otherwise unenforceable (35 U.S.C. 282(b)(3)(A))20. See Written description requirement and Enablement requirement.
- Claims. The specification must conclude with one or more claims particularly pointing out and distinctly claiming the subject matter regarded as the invention (35 U.S.C. 112(b))4. See Patent claim.
Outside the United States
"Utility patent" is the USPTO's name for one of its patent types. Other systems use different names and different rights.
United States
- Utility and plant patent applications can be provisional or nonprovisional. Provisional applications may not be filed for design inventions1.
- The term of a utility patent may be adjusted under 35 U.S.C. 154(b) for certain delays in examination6,14, and the term of a patent claiming a product subject to regulatory review before marketing may be extended under 35 U.S.C. 15617. See Patent term adjustment and Patent term extension.
Europe
- The EPC does not use the term. European patents are granted for any inventions, in all fields of technology, provided they are new, involve an inventive step and are susceptible of industrial application (Article 52(1) EPC)15.
- The term of the European patent is 20 years from the date of filing of the application (Article 63(1) EPC)16.
China
- The Patent Law of the PRC covers inventions, utility models and designs (Article 2)5.
- The term of an invention patent is 20 years, of a utility model patent 10 years and of a design patent 15 years, each from the filing date (Article 42)5. An invention patent term can be extended to compensate for unreasonable delay in grant and, for new drugs, for marketing approval time (Article 42)5.
Utility patent vs utility model
The names are similar, but a utility model is a different right. See Utility model for how it is examined and granted.
| Aspect | Utility patent (US) | Utility model (China) |
|---|---|---|
| Subject matter | A new and useful process, machine, article of manufacture or composition of matter, or improvement of these2 | A new technical solution proposed for the shape, the structure, or their combination, of a product, which is fit for practical use (Article 2)5 |
| Term | 20 years from the filing date6 | 10 years from the filing date (Article 42)5 |
Questions people ask
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Start draftingIs a utility patent the same as a utility model?
No. A utility patent is a US patent type for processes, machines, articles of manufacture and compositions of matter, with a term of 20 years from filing2,6. A utility model is a separate right in other systems. In China, for example, it covers new technical solutions for the shape or structure of a product and lasts 10 years from filing5.
How long does a utility patent last?
Subject to payment of fees, 20 years from the filing date in the United States, or from the earliest related application claimed under 35 U.S.C. 120, 121, 365(c) or 386(c)6. Maintenance fees fall due 3 years and 6 months, 7 years and 6 months, and 11 years and 6 months after grant, and the patent expires if a fee is not paid within the grace period7. The term may also be adjusted for certain examination delays under 35 U.S.C. 154(b)6,14 and, for some products subject to regulatory review, extended under 35 U.S.C. 15617.
Do design and plant patents need maintenance fees?
No. Under 35 U.S.C. 41(b)(3), no fee may be established for maintaining a design or plant patent in force7. Utility patents do require maintenance fees7.
Can software or a business method get a utility patent?
It depends on the claim. Processes and machines are eligible categories under 35 U.S.C. 10111, but laws of nature, natural phenomena and abstract ideas are not patentable12. In Alice Corp. v. CLS Bank, the Supreme Court held that claims to an abstract idea were not made patent eligible merely by requiring generic computer implementation12.
How it connects
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