If you invent something new, you can ask the U.S. Patent Office for a patent so that only you can make the invention for some time. There are different types of patents. Utility patents protect how an invention works. Design patents protect how an invention looks. You may need a utility patent or a design patent, or you may need both! If your invention is new in how it works and new in how it looks, apply for both a utility patent and design patent.

Design Patent Versus Utility Patent

Let’s compare the differences between a design patent and utility patent:

An invention may need both a design patent and a utility patent if it has a new shape and a new way of working.

Let’s look at Nintendo’s original Game Boy handheld gaming system:

On the left is Nintendo’s design patent for the Game Boy and on the right is Nintendo’s utility patent for the Game Boy. Each protects different aspects of Nintendo’s invention. The design patent protected the shape of the handheld gaming system so that nobody else could make a gaming system with a similar rectangular shape and “A” and “B” buttons positioned at an angle. However, how the Game Boy worked was also new and Nintendo obtained a patent for how the Game Boy worked, including the volume control, the game cartridge slot, the screen contrast adjustment, and the low battery indicator.

Let’s look at the Apple iPhone as another example:

Apple has a utility patent to protect how the iPhone works. From the buttons and sensors to the screen and icons, these features of the iPhone make it unique to deserve a patent. Further, Apple has a design patent to protect how the iPhone looks. The utility and design patents work together to protect both the iPhone’s function and shape. With only a utility patent, a competitor could make a phone that looks like the iPhone, as long as the phone functions differently. With only a design patent, a competitor could make a phone that functions like the iPhone, as long as it looks different. The key is that utility and design patents are not substitutes in that you choose one or the other. Instead, they are complimentary in that they work together to protect both function and shape.

Utility Patent or Design Patent?

In deciding whether you need a utility patent or design patent, ask yourself these questions:

Question 1: If someone made an invention that does what my invention does, but they simply changed the shape, am I okay with that?

• If your answer is no: You need a design patent to protect your invention’s shape and a utility patent to protect how your invention works.
• If your answer is yes: You don’t care if someone copies the shape of your invention and you might not need a design patent.

Question 2: If someone made an invention that looks like my invention, but it does something completely different, am I okay with that?

• If your answer is no: You need a utility patent to protect how your invention works and a design patent to protect how your invention is shaped.
• If your answer is yes: You don’t care if someone copies what your invention does and you might not need a utility patent.

Do not decide whether to file a utility patent or design patent based on which is less expensive. The less expensive patent application may not be the protection that you want. At the same time, do not decide which patent to apply for based on which is easier to get. Design patents are usually easier to get than utility patents. However, that doesn’t mean you should apply for a design patent just because it is easier. You must determine what you want to protect, how your invention works or how your invention looks, or both. Then, apply for the right patent, or both.