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July 12, 2023
John Rizvi, Esq.

Design Patent or Utility Patent?: The Difference Between These Two Types of Patents

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versus what it's worth the different types of two main types of patents are, there are design patents, which protect the look of an invention. And then there are utility patents, which protect the function. So all inventions have a certain look. And you can protect that with a design pattern. And that would give you a 14 years of protection. And nobody else can sell something that looks like yours. But if it's not the look, if it's the function you want to protect, then it's a utility patent that you need. So those are the two main types. Do you have any, you have an orange prototype? Hold that up. So

this is a Frisbee, it has a function where you can throw it to a partner in crime, and they catch it. Right, that would be the function. That's the function. Nice. But with this frisbee, has special ridges, which, I suppose is supposed to make it more aerodynamic, maybe. But these ridges are protected with a design patent. Right?

Correct. So and that's the thing. So if the ridges have a function, then you are able to protect it with a patent. So Giovanni says, we don't know specifically, what these are actually patented. But if they if the ridges are somehow helping with the aerodynamics, and they have function, then you produce a, then you would file a design patent. And the design path or sorry, a utility patent utility patent would prevent anybody having general ridges to help with aerodynamics. But here's the thing, these ridges and I took off with a marker here. That's approximately what the ridges look like. I'm probably off by a long bit. Why don't you hold up the Frisbee again,

that's either Sonic the Hedgehog or Hurricane Wilma, not 100%. Sure.

Okay, well, you get the idea. So if this inventor were to file a design patent, then nobody else could have a Frisbee with ridges like this. But somebody could make a Frisbee with ridges like this. And you'd simply change the look, and they get around your rights. So design patents are you know, there's there's nothing wrong with them, but you can't use them on a patent if, if what you need is a utility, and I just see a note from Rick here says that that Shark Tank emphasizes utility patents. And there's a reason for that utility patents protect the function. So if you can get the function protected, then that's the gold standard matter what's the ridges look like under a Frisbee if the function of having rules on the outer surface or the surface you have to define it carefully. If that's what makes your your product better, as its distinguishing characteristic, then a utility patent is definitely the way to go. You ready for the next step prototype let's get a question or two Oh, well, let's perfect let's go with this one.

The nerf water gun this is the Hydra know if you can read that. But yes, the function I suppose if so you can squirt another individual profusely. With

exactly for that doesn't look like the water guns that you know that I'm old. So those aren't what I grew up with them before the Super Soaker came out water guns were like a tiny little pistol, and you would get a little squirt. Yep, they're obviously the old expression. This is not your father's Oldsmobile or this is not your father's gun. But this has now the function is defined as a huge splat or stream of her and you can cry that mathematically. And nobody else can produce that and take that function if you get a utility patent. But if they file a design patent, so Giovanni if you hold that, that that gun right up to the camera, and as you can tell, there are all kinds of features on this gun that are for us only. You can see all those little ridges in the plastic. You can see the white, the three little white, I guess, animals that are cut if appointed them Giovanni if you know what I'm talking about under weight. Yeah, exactly. Those three little channels. Those are all designed functions. They serve no practical purpose. Here's the other side, almost a mirror image. But if you, why don't you put your finger on circular depression near the front side? It's like, yeah. So what possible purpose could that have? If it has a purpose, you want to protect it with a utility patent. But if it's just the way it looks, you want to protect it with a design. So to get some of this, this clarification out early design patents are important, even for in every field, there might be the look of an idea that that makes it take off much more so than the function, but sometimes it's the function. So

how could I look holding this?

Well, you cannot. But if you have a unique method, you have a secret way of using it methods can be patented as well. So you can you can figure out a way a series of steps and that may be protectable. But we so those are I'm glad you brought that up actually, because utility patents protect methods and that's why they protect software as well. Software doesn't have a specific look now your screen and the screens. images might have a specific look and those you can protect with a copyright. But most people when they get software they're trying to protect the function of the idea not the not the underlying design. So utilities the right way to go. So at let's let's get in a question or two and then we have other examples, which I might use clarifies

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