United States: Types of Patents

Last Updated: December 19 2014
Practice Guide by Brinks Gilson & Lione

There are three general types of U.S. patent: utility, design, and plant.

1. Utility Patents. Also called functional patents, utility patents encompass the function or operation of a machine or device. A utility patent issuing from an application filed after June 7, 1995 has a term of enforceability that runs from the date of issuance to 20 years from its earliest effective U.S. filing date, provided that periodic maintenance fees are paid. Certain occurrences during the prosecution of the patent application may give rise to a patent term extension. Utility patents can be obtained in the following categories:

a. Machines or Apparatuses. Includes devices in which components interact, for example automobile transmissions, machine tools, appliances, etc.

b. Processes. Includes methods or procedures used in the manufacture of a device or product, and encompasses computer software used to produce some tangible result.

c. Articles of Manufacture. Includes articles without moving parts, for example soap dishes, water-spray nozzles, and bottles.

d. Compositions of Matter. Includes compounds and mixtures such as plastics, pharmaceutical compounds, and metal alloys. This category also encompasses certain types of life forms, including single-cell and multiple-cell organisms and vertebrate animals. For example, Harvard University was granted a patent on a genetically engineered mouse (see U.S. Patent No. 4,736,866).

e. Business Methods. A term used to describe certain types of processes that relate to doing business. Business method patents have experienced dramatic growth as e-commerce and Internet technologies continue to advance. Since business method patenting recently has been the subject of major legal and commercial developments, a more detailed discussion is warranted.

For many years, inventions regarded as methods of doing business were viewed by the United States Patent and Trademark Office (USPTO) as not patentable. Beginning in the 1980s, however, the USPTO began allowing patents in this area.

The patentability of business methods was confirmed with the issuance of the State Street Bank v. Signature Financial Group decision handed down by the Court of Appeals for the Federal Circuit (CAFC) on January 23, 1998 (149 F.3d 1368 Fed. Cir.).

This decision determined that there was no legitimate basis for withholding patents on methods of doing business. Since that time, a flood of business method patents has been issued, including, for example, the “Name-Your-Own-Price” airline ticket business, made famous by Priceline.com (see U.S. Patent No. 5,797,127), and the Amazon.com patent on “One Click Ordering Process for Internet Purchases” (see U.S. Patent No. 5,960,411).

While it is now settled that methods of doing business are not excluded as patentable subject matter, significant changes in this area are possible in view of a court case entitled In Re Bilski.

The CAFC issued an opinion in Bilski, which specified that a process, such as a business method, must meet the “machine or transformation” test. Under this test a process must be tied to a machine that performs the process or transforms an article to a different state or thing. As such, the CAFC found that a method of hedging risk in the field of commodities trading that was not tied to a machine was unpatentable because the method operated on legal obligations and, therefore, there was no physical transformation. The court did rule that business methods were not per se un-patentable.

Many other considerations differentiate business method patents. Initially, many of these patents were granted, arguably, without sufficient scrutiny, due to the lack of prior art available to examiners at the USPTO. The term “prior art” is used to refer to any public documents or information that describe aspects of the “state of the art” as it existed prior to the invention or effective filing date.

To address this issue, the USPTO has instituted a policy whereby business method patents are examined by two examiners, which in turn significantly increases the application pendency period.

In recent years, allowance rates have been between 10% and 20% for business method patents, which is much lower than the overall rate of about 55%. Nevertheless, the number of applications for business method patents has been strong. From 2006 to 2010, the most recent years for which data is available, the annual number of US patent application filings for business method patents was greater than 9,000.

f. Computer Software. This subject matter was previously deemed to be un-patentable based on Supreme Court holdings that created confusion over whether software was an idea, a formula, or an algorithm. More recent Supreme Court rulings have focused on the patent claims as a whole, versus whether they contain a mathematical formula, in determining whether the overall process or method is patentable. Since then, many computer software applications have been filed, and many have been issued into patents (see Gottschalk v. Benson, 409 US 63 [1972] and Diamond v. Diehr, 450 US 175 [1981]).

While it is still unclear whether claims to computer software are patentable, the Bilski case is equally applicable here. In addition, the CAFC has ruled that claims to a signal with an embedded digital watermark encoded according to a given encoding process do not constitute patentable subject matter.

It should also be noted that various foreign jurisdictions have revisited the question of computer software patentability. Computer software that is separate from an apparatus or machine is considered not to be patentable in most countries outside the United States. In such jurisdictions, protection for computer software is claimed in the form of the apparatus or machine that executes the software.

2. Design Patents. These patents protect any new, original, and ornamental design for an article of manufacture. In contrast to utility patents, which protect the function or operation of a machine or device, design patents protect the appearance of a product. This appearance may be in the form of a shape, color, surface ornamentation, or a combination of these factors.

Design patents protect well-known consumer goods, such as Apple iPods, Nike footwear, and Eclipse mints, to name just a few.

Design patents are becoming increasingly popular. Since 2006, almost 23,000 have been issued annually. The United States leads all countries in design patents, followed by Japan, Taiwan, Germany, and Canada. And the companies most frequently seeking design patent protection include Samsung, Sony, Nike, Procter+Gamble, Goodyear, and Microsoft.

These patents have a term of 14 years from the date of issuance, and unlike the types of patents mentioned above, are not subject to maintenance fees (periodic taxes payable to the USPTO). Generally, design patents are less expensive to obtain than utility patents and issue much sooner. However, the scope of protection is different and often more limited.

There is no requirement that the design be artistic or pleasing to the eye, only that it is primarily ornamental in character. If the overall appearance of the design is dictated by performance, then the design is functional and not entitled to design patent protection. One example is U.S. Design Patent No. D327,636, which disclosed a design for a key blank. In an infringement proceeding, the Court of Appeals for the Federal Circuit (CAFC) held that the shape of the blank key blade was dictated by function, and thus the design was not ornamental. Best Lock Corp. v. Ilco Unican Corp., 40 USPQ2d 1048 (Fed. Cir. 1996). Sometimes, however, articles such as automobile wheels and cell phone housings blend functional and ornamental features, with the design features therefore available for design patent protection.

3. Plant Patents.These patents are available for asexually reproduced plants. A relatively small number are issued each year. And since they define their own highly specialized field of patent law practice, reference should be made to other resources should you desire more information.

4. Judicially Excluded Subject Matter.This includes developments that the courts have defined as outside the scope of the patent types described above. It encompasses:

• Printed matter;

• Naturally occurring substances;

• Ideas, mental processes, or mathematical formulas not involved in any tangible application; and

• Scientific principles or laws of nature (by themselves)

To find out more please access our IP Primer page.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Other United States Advice Centres
Advertising and Marketing
More Advice Centers
Useful Resources
The IP primer provides an overview of the complexities of IP law, is an excellent resource for both new and experienced professionals and available in a number of languages.
A collection of recent and significant publications by the Experts at BGL.
USPTO is the federal agency for granting U.S. patents and registering trademarks.
Administers the U.S. copyright law and advises Congress and other government agencies regarding copyright issues.
WIPO is the global forum for intellectual property services, policy, information and cooperation.
INTA is a global association of trademark owners and professionals.
The Intellectual Property Owners Association is a trade association for owners of patents, trademarks, copyrights and trade secrets.
The AILPA is an innovator, powerful advocate, and visible global leader in intellectual property.
AIPPI is an international organization comprised of business firms, executives, lawyers, educators, patent and trademark agents, intellectual property owners, and other persons interested in the worldwide protection of patents, designs, trademarks, trade names, know how, goodwill, copyright, and other intellectual property rights and the elimination of unfair trade practices.
BIO is the world's largest trade association representing biotechnology companies, academic institutions, state biotechnology centers and related organizations across the United States and in more than 30 other nations.
Supports innovation, competitiveness and economic growth across Europe through a commitment to high quality and efficient services delivered under the European Patent Convention.
Upcoming Events
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.