A utility patent is a patent granted to a person, who invents, discovers, or brings minor improvements in existing products, processes, machines, and manufacturing units in a useful way. It can be called a minor patent, small patent, innovation patent, etc. Unfortunately, not every country offers utility patents, only certain countries in the world offer utility patents are China, Brazil, Japan, Italy, UAE, etc. so India is not a part of it.
A utility patent is one of the types of the patent that the United States Patent and Trademark Office (USPTO) will award to all the inventors in this stream.
A patent for an invention will be given by the patent office after considering the credibility of the invention and after analyzing whether the invention already exists.
The utility patent is a patent conferred to the inventor, who exercises the exclusive right over his/her invention by preventing others from making, selling, or carrying out other commercial activities without his/her authorization for a limited period as prescribed.
When the utility patent is obtained, it will protect the whole structure and the various functions of the invention. Similarly, there should not be any alleged or pirated version of the invention, even though it looks different.
Features Of Utility Patents
- The utility model provides an absolute right over the invention concerning the products, and not process.
- The utility patent is suitable for a minor invention, which is made out of the existing one or said “incremental invention”.
- Here, both the standards of novelty and nonobviousness are required but it differs upon the countries.
- Generally, the patent will protect for a span of 20 years but the utility patent will have short term protection, in comparison, and also differs from country to country. For example, Japan provides 10 years’ protection, whereas France provides protection only for 6 years. So, the average term of protection of utility patents will be around 6 to 15 years.
- The time taken for the registration process of the utility model is less as compared to other patents. Here, there will not be any in-depth scrutiny process prior to registration, and only the basic requirements are analyzed.
- In India, there is no law or provision for obtaining the utility patent. Hence, Indian companies and startups have to obtain utility patents from the above-mentioned countries.
Utility patent drawings:
In India, a trademark application can be filed under the provisions of the Madrid Protocol when India is the origin or the designated country. In case India is the origin country, applications for international trademark registration can be filed with the Indian Trademarks Registry (TMR). If India is chosen as the designated country, applications for international trademark registration are filed with the WIPO.
- Utility patent drawings play an important role in the patent application process and help in visualizing the complicated invention in a better manner and the drawing should be very lucid, clear, accurate, and formal.
- Every utility patent application should be supported by a graphical representation of the respective invention. Most of the time, the applicant represents informal drawings like hand-made sketches, low-quality images, etc and these are all become the possible grounds for rejection of utility patent application. So, by submitting the patent drawings, which will make the patent examination process easier and showcase the invention into the market faster.
- Mainly, the utility patent drawings should comply with the requirements of the USTPO like angle view, letters, numbers, lines, proportion, etc to obtain the utility patent protection.
- Similarly, the patent office will require the applicant to furnish at least one drawing of the invention except for chemical substances.
- If the applicant has missed out on any illustration to be submitted along with the application, then the commissioner will mandate the applicant to submit the sketch within two months from the date of receipt. If the applicant had failed to submit the drawing within the specified time, it will not be encouraged anymore.
- Clearly, it can be said, the explanation on the subject matter of the invention will be complex some time. so, submitting the utility patent drawing will be easily acknowledged by the person, who processes the application in the patent office.
- The utility patent can be acquired for software by meeting certain standards required by USPTO. But obtaining the software patent, it would make it unlike any other patent. There is not enough explanation available for which part of the software is patentable and still its a debate. By analyzing the existing software patents, it shows the areas where the software is most likely to be patentable with networking technology, encryption, databases, internet search, user interface, machine control interface.
- Obtaining software patent in India is possible. The patent is granted for embedded software in mobile applications, which should contain innovations with novel and inventive features and a combination of both the software and hardware. Similarly, section 3 of the Indian patent act, 1970 listed out the non-patentable inventions.
Benefits Of Utility Patents
The registration of the utility model patent requires only preliminary examination, and not a substantive examination of the invention. So, it requires only a minimum of 6 to 12 months for the registration in comparison to the normal patent which can extend on for 2 to 3 years.
Suitable for products with a short span:
In most cases, the utility model patent is applied for incrementally improving products. i.e making minor improvements from existing products. So, it can easily make an impression when released in markets.
The utility model patent is significantly cheaper than normal invention patents, concerning the cost involved for the application, renewal, and maintenance.
Protection from infringement:
Once the utility model patent is conferred to the inventor, no one has the right to reproduce it, for commercial selling, or for showcasing the themed product. Hence, it provides complete immunity to the product from being infringed.
Least possibility for refutation:
The utility model patent requires a lower inventiveness from the previous version, because of this, the scrutiny process will not be comprehensive and eventually, it is very hard to refute the invention without any solid grounds.
The barrier to entry:
The competitor should not introduce any pirated version of products into the market. If so, the competitor can be sued for infringement, once the utility patent has been completely enforced. Here, the rightsholder can claim the competitor to give back the profits and put the barrier for further sales and marketing of the products. Similarly, the competitor cannot be sued, if the application for the utility model patent is in pending status in the patent office.
Increased profit and reputation:
As the demand for the patented product is enormous, apparently it will generate more profits to the patent owner and increase the reputation of those products. As the patent owner is the sole authority for the manufacturing and selling of the products, there will not be any competitors in markets. If so, the patent owner can sue and obtain damages from them.
Encourage more inventions:
Providing safeguards like conferring the protection of exclusive rights over the inventor for a limited period and erecting barriers for the competitor in the market will consequently encourage the people to spend their valuable time in the invention.
Checklist for Utility Patents
- While applying for the utility patent, mention the kind of inventions and which category it belongs to like the machine, manufacture, or composition of matter.
- The appropriate fee should be paid for the basic filings, search, and examination processes.
- The Application Data Sheet (ADS) should be filled along with the details of inventor information, address, domestic benefit, foreign priority, and assignee information.
- The document containing the specification of the invention should be mentioned clearly and concisely. It should be easily understandable by anyone.
- The title of the invention should be defined in a descriptive manner containing 3 to 7 words. Don’t frame a single word as a title of the invention.
- If the content goes beyond 50 pages, then enclose all the details in the Compact Discs (CDs) and it should be elaborately mentioned about the number of the disc and the files present inside it in the application form.
- In the non-provisional application of the utility patent, a minimum of one claim, in which the inventor acclaims his invention as distinctive should be present and preferably in a single sentence.
- A drawing sketch of the invention should be included along with the description of the claim and this drawing should be very lucid, attractive, and visible.
Types of patents:
There are three types of patents namely
- Utility patents
- Design patents
- Plant patents
Here each patent will require different requirements and eligibility criteria for protecting the specific type of invention. In case, if the person wants to obtain the patent for both the functional characteristics and design of the product, he/she should separately apply for both the utility and design patent.
The utility patent is the most common type and it covers the processes, machines, manufactures, and composition of matters that are inventive, non-obvious and useful. Here, the process involved is a technical process, which prescribes the method of making something. Machine refers to electronic and non-electronic machines like computers, mobile phones, etc. The composition of matter resembles the new chemical compositions by mixing the chemical elements or substances thereby obtaining the new chemical compound.
Design patent is conferred to the “shape and configuration of the object”. Here the shape and appearance of the object should be unique and not resemble any other shape of existing objects. In this type of patent, it protects only the shape and design of the product, not their functional features.
A plant patent will be obtained for the new and distinctive plants produced by the method of asexual reproduction, which forms as the proof for the patent application. Simply, it can be said that plants are reproduced without seeds. The asexual reproduction is done by the process of rooting of cutting, grafting, layering, budding, etc. Here, the plant patent cannot be obtained for “Tuber propagated plants' ', which reproduces from the same part of the plant and comes under the food tagline. Eg: Irish potato.
Procedure for obtaining the utility patent model:
Filing the utility patent application
- Before filing the utility patent, analyze the overall basic process of the patent application procedure like the time taken for patent approval, what are all the fees prescribed, what are all risks and advantages for obtaining the patent.
- Determine the type of utility patent to be acquired. Most of the time people tend to confuse with the types of patents available in the patent office.
- Conduct novelty research in order to sort out whether an idea still exists. If the idea does exist, then it has to be revoked from the process. Similarly, there is a possibility of rejection even after conducting a novelty research. So, the novelty research does not provide any guarantee that the invention will be patented.
- The patent application consists of forms, fees prescribed, and written description. The forms can be found out in the USPTO website and the written description of the utility model will consist of
- Title of an invention
- Background of an invention
- Statement regarding any fund sponsored by the government
- A brief summary of the invention
- Description of drawings
- A detailed description of the invention
- Inventor oath
Examining the patent application
- The examination of the patent application for the utility model will take around 4 to 6 months, and it is selected on the basis of first come first served.
- Initially, the patent application will be first examined by the office of the initial patent examination.
- Here, the formalities will be cross-checked and the application is made ready for the substantive examination.
- The inventor should disclose all the supporting material information related to the invention.
- In the substantial examination, the whole subject matter, novelty, non-obviousness, written description will be scrutinized and if the invention has passed the aforesaid process, the patent will be granted.
- During the examination, the written description will be analyzed whether it explains the invention clearly to the public.
Respond to the objection
- There is a lot of ground for the utility patent to be rejected but the explanation for the rejection will be stated by the patent office.
- Once the application gets rejected, the inventor can file a response to the examiner for supporting his claim against the rejection.
- Generally, the response should be filed within 3 months from the date of action taken by the patent office. If the response was filed after these 3 months, an additional penalty will be levied for the inventor.
- If the application is rejected, it is a mere opinion of the examiner. By providing supporting documents against the rejection, the patent can be obtained after the examiner is satisfied with the claim.
Awarding the patent:
If the objection of the examiner is overcome, the USPTO sends notice of allowance and fees due. Now the applicant has to pay the issue fees and publication fees along with aforementioned fees. Once the aforementioned process is successfully over, the patent is granted. It is important to consider that after obtaining the utility patent, the maintenance fee should be paid in the intervals of 3.5, 7.5, and 11.5 years regularly.
Documents required for filing utility patents
- Utility patent application transmittal form.
- Fee transmittal form.
- Application Data Sheet.
- Written Description of the invention.
- Drawing sketch of the invention.
- USPTO prescribed fees.
- Oath and declaration of the inventor.
Frequently Asked Questions
- The Utility patent covers the functional characteristics of the invention rather the design patent protects only the structural appearance of the invention.
- The utility patent will protect the novelty of the product, its use and methodology.
- Design patents will help in protecting the unique external appearance of the invention.
Yes. The USPTO states that mathematical equations cannot be patented but the software used to translate the equations can be patented. So the software developed for this purpose is eligible to obtain a patent, if it produces useful and tangible results.
As per the requirements of the USPTO, the drawing of the invention is necessary for understanding the concept of the invention, while it presents the invention in a more visualized way. Similarly, without the drawings, the context of the patent will be difficult to be understood. This drawing will make it clear to the examiner about the abstract of the invention.
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