The US grants three types of patents, and the differences between them are larger than most people expect — in what they protect, how long they last, and what they cost over twenty years.
Utility patents are what almost everyone means when they say "a patent". They are the overwhelming majority of grants and the only type requiring maintenance fees.
The three types compared
| Utility | Design | Plant | |
|---|---|---|---|
| Protects | How it works | How it looks | A plant variety |
| Covers | Process, machine, manufacture, composition | Ornamental appearance | Asexually reproduced plants |
| Term | 20 years from filing | 15 years from grant | 20 years from filing |
| Maintenance fees | Three, $2,894-$14,470 | None | None |
| Claims | Multiple, negotiated | One, referring to drawings | One |
| Typical cost | $8,000-$20,000+ | Low thousands | Varies |
| Office actions | Common | Less common | Varies |
| Infringement test | Element by element | Ordinary observer | Asexual reproduction |
| Share of US grants | Vast majority | Meaningful minority | Very small |
Utility patents
The default type, covering function.
What qualifies: a process, machine, article of manufacture or composition of matter, or a new and useful improvement to one, under 35 U.S.C. 101. That encompasses manufacturing methods, mechanical devices, chemical formulations, electronic systems and — with more difficulty — software implementations.
The term runs from filing, not grant. Twenty years from the earliest non-provisional filing date. Because examination averaged 26.3 months total pendency in FY2024, a patent granted today typically has around seventeen years of enforceable life. See how long does a patent last.
Three maintenance fees, at 3.5, 7.5 and 11.5 years after grant:
| Fee | Large entity | Small entity | Micro entity |
|---|---|---|---|
| First | $2,150 | $860 | $430 |
| Second | $4,040 | $1,616 | $808 |
| Third | $8,280 | $3,312 | $1,656 |
| Total | $14,470 | $5,788 | $2,894 |
Only 41.4% of utility patents reach full term. The other 58.6% are abandoned at a fee deadline because their owner concluded the payment exceeded the value — see the Ipiry Patent Survival Curve.
Infringement is assessed element by element. Every limitation of a claim must be present in the accused product, literally or by equivalent. Miss one and there is no infringement, however similar the product otherwise is.
Design patents
Appearance only, and considerably cheaper.
What qualifies: a new, original and ornamental design for an article of manufacture, under 35 U.S.C. 171. The design must be ornamental rather than functional — features dictated solely by function belong in a utility patent.
Term is 15 years from grant for applications filed on or after 13 May 2015, and 14 years for earlier ones. Note this runs from grant, unlike utility patents.
No maintenance fees at all. A design patent granted today costs nothing further for its entire term, which is a substantial difference over fifteen years.
A single claim. Design patent claims take the form "the ornamental design for [article] as shown and described", referring to the drawings. There is no claim negotiation of the kind that dominates utility prosecution.
The drawings are the patent. What is shown in solid lines is claimed; what is shown in broken lines is disclaimed context. Drafting strategy is almost entirely about which features to claim and which to show in broken lines to broaden scope.
Infringement uses the ordinary observer test. Would an ordinary observer, giving such attention as a purchaser usually gives, be deceived into believing the accused design is the patented one? A visual comparison rather than an element-by-element analysis, and considerably simpler to assess.
The limitation is that scope is narrow. A competitor whose product looks meaningfully different does not infringe, even where the function is identical.
Plant patents
The smallest category by a wide margin.
What qualifies: a distinct and new variety of plant that has been asexually reproduced — propagated by cutting, grafting, budding or division rather than grown from seed — under 35 U.S.C. 161. Tuber-propagated plants and plants found in an uncultivated state are excluded.
Term is 20 years from filing, with no maintenance fees.
Sexually reproduced varieties are covered elsewhere. The Plant Variety Protection Act provides a separate certificate system administered by the USDA rather than the USPTO, which is a different right with different requirements.
What are not patent types
Several things get called patent types and are not.
| Term | What it actually is |
|---|---|
| Provisional patent | A filing type. Never examined, never becomes a patent, lapses at 12 months |
| Continuation | An application claiming priority to a pending parent, different claims |
| Divisional | An application filed in response to a restriction requirement |
| Continuation-in-part | An application adding new matter to a parent's disclosure |
| International patent | Does not exist. The PCT is a filing procedure, not a patent |
| Reissue | A corrected version of an existing patent, not a separate type |
"Provisional patent" is the most common error. There is no such thing. A provisional application is a filing that confers patent pending status for twelve months and then lapses. It is never examined and never becomes a patent on its own.
"International patent" does not exist either. Patents are national rights. The Patent Cooperation Treaty provides a unified filing procedure that preserves the option to enter national phase in member countries, but every resulting patent is a national patent granted by a national office.
Which one do you need?
Start from what is novel about the product.
| Your innovation is in | File |
|---|---|
| How it works | Utility |
| How it looks | Design |
| Both | Both, as separate applications |
| A plant variety, asexually reproduced | Plant |
| A plant variety from seed | PVP certificate, not a patent |
Both is common and often correct. A product with a genuinely new mechanism and a distinctive appearance can carry a utility patent on the mechanism and a design patent on the appearance, and they protect against different competitive responses.
Design patents are underused by small filers. They are cheap, they grant faster, they carry no maintenance fees, and enforcement is visual rather than technical. Where appearance drives purchasing — consumer products, furniture, packaging, user interfaces — a design patent is frequently better value than an expensive utility application that may not survive examination.
A worked comparison
A consumer device with a novel internal mechanism and a distinctive external form. Small entity.
Utility patent route
| Item | Cost |
|---|---|
| Application drafting | $9,000 |
| USPTO fees (small entity) | $800 |
| Two office action responses | $4,000 |
| Issue fee | $480 |
| To grant | $14,280 |
| Maintenance fees, all three | $5,788 |
| 20-year total | $20,068 |
| Enforceable life | ~17 years from grant |
Design patent route
| Item | Cost |
|---|---|
| Drawings and application | $2,000 |
| USPTO fees (small entity) | ~$600 |
| Issue fee | ~$350 |
| To grant | ~$2,950 |
| Maintenance fees | $0 |
| 15-year total | ~$2,950 |
| Enforceable life | 15 years from grant |
Both
Roughly $23,000 across twenty years for protection on function and appearance, against $20,000 for function alone.
The design patent adds about 15% to the total cost and covers the competitive response the utility patent cannot reach — a competitor who works around the mechanism but copies the look.
What determines the answer is which response is more likely. In markets where appearance drives purchasing, the design patent may be the more valuable of the two despite costing a seventh as much.
Term and cost over twenty years
| Utility | Design | |
|---|---|---|
| Cost to grant | $8,000-$20,000+ | Low thousands |
| Maintenance fees | $2,894-$14,470 | $0 |
| Term | 20 years from filing | 15 years from grant |
| Effective life | ~17 years | 15 years |
| Survives to full term | 41.4% | Effectively all |
The survival difference is entirely about fees. Design patents do not get abandoned because there is nothing to abandon them over — no payment falls due, so no decision is forced.
That makes the long-run cost comparison more favourable to design patents than the headline figures suggest, particularly for small entities where the third utility maintenance fee alone exceeds the entire cost of a design patent.
Before you choose
- Identify what is actually novel — function, appearance, or both.
- Consider filing both where the product has a distinctive look, because the marginal cost is small.
- Check the design is ornamental, not dictated by function, or it belongs in a utility application.
- Budget for the full term, including utility maintenance fees — see how much does a patent cost.
- Do not file a "provisional patent" expecting a patent. File a provisional application knowing it lapses in twelve months.
- Remember patents are national, so decide which markets matter before filing anywhere.