A patent for an invention grants the inventor legal ownership rights for his invention.  Once a patent has been obtained, an invention may not be lawfully manufactured, copied, used or sold without the inventor’s consent.  Basically, the patent law provides for the granting of patents in three major categories: utility patents, design patents and plant patents.

A utility patent protects the “structural and functional” aspects of an invention (i.e., how it works and how it is used) and is normally pursued in those instances where it is desired to protect how the invention operates, or how it is used.  A utility patent can be issued to any person who invents a new, useful, and non-obvious (1) process, (2) machine, (3) manufactured article, (4) composition of matter, or (5) any new and useful improvement to any of these types of inventions.  “Process” means any process or method. “Manufacture” refers to articles that are made.  “Compositions of matter” relates to chemical compositions and may include mixtures of food ingredients and recipes, as well as new chemical compounds.      

A provisional patent should be thought of as a stepping stone toward a utility patent application in that it establishes priority for an invention, but must be “converted” into a standard utility patent application within one year following the provisional filing to fully establish the inventor’s rights in the invention.  Once converted, the utility patent application receives priority from the earlier provisional filing date.  In addition, during the pendency of the provisional patent application, the product is deemed and may be labeled “patent pending”.  Accordingly, the filing of a provisional patent is often recommended since it provides an additional one year “safety period” to pursue and market the invention.  At the end of this one year period, any refinements and improvements that have been made to the invention should be integrated into the converted utility application. 

A design patent is strictly directed to protecting the overall appearance (i.e., how it looks) of an invention.  It can be granted for a new, original and ornamental design for an article of manufacture.  Design patents, if obtained, will not include protective coverage for the structural and functional aspects of an invention.  Design patents are appropriate for certain inventions, but not all.  For example, recipes do not qualify for design patent protection.  However, a food container or packaging for a food product may qualify for design patent protection.  Similarly, the actual shape and appearance of the food product itself might be design patentable, as explained in more detail later in this report.

A plant patent is granted to any person who has invented or discovered, and asexually reproduced any distinct and new variety of plant, including cultivated spores, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state.   Most inventions fall into the utility and design categories.  Plant patents are rare. When possible, a patentability search is directed to both the utility and design features of an invention so that a determination can be made as to which type of patent protection may be available.  In most cases, it is better to pursue utility patent protection since protecting the function and structure of an invention is preferably over protecting the appearance.  However, where meaningful utility patent protection may not be available, or if the appearance of an invention is more important than its function, design patent protection may be the best choice.  There are also those situations where it may be appropriate to seek both utility and design patents for an invention.  More specifically, an inventor may feel that both “function” and “appearance” are important, and when this occurs, the inventor may choose to file both design and utility patent applications for the same invention.