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Introduction to Intellectual Property

1.8 Other Types of Patents

Introduction to Intellectual Property1.8 Other Types of Patents

A photo of many seedlings inside of a greenhouse.
Figure 1.20 (credit: Photograph by Brian Boucheron via flickr / CC BY 2.0)

Learning Objectives

After completing this section, you will be able to

  • Explain the diff ences among utility, plant, and design patents.
  • Describe common patent misconceptions.

Up to this point, we have focused only on the most common types of patents, called utility patents, which preclude others from making, using, or selling the invention during the term of the patent, which begins on the grant date and ends 20 years from the filing date (for an average of 17 to 18 years). But in addition to these, the Patent Act also provides for two other types of patents—plant patents and design patents.

Plant Patents

Plant patents were first created by the Patent Act of 1930, which had been proposed by Luther Burbank to protect new species of asexually reproduced plants, mostly flowers. These are different than the utility patents granted to bioengineered plants used in agriculture. The United States was the first country in the world to grant plant patents, and even today many countries continue to deny protection for plants. Indeed, even some signatories to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) administered by the World Trade Organization (WTO) reserve the right to deny patents for plants.

Although the requirements for plant and design patents are substantially the same as those for utility patents, there are some crucial differences. The most important of these is the substitution of a different test for one of the three criteria for patentability discussed in the previous section.

Instead of novelty, utility, and non-obviousness, the criteria for plant patentability are novelty, distinctiveness, and non-obviousness. To be patentable, plants must be cultivated rather than found in the wild, and plant patents are granted only to protect a new, distinct, and non-obvious variety of asexually reproduced plant—i.e., those grown not with seeds but by grafting, budding, or cutting. A plant need not be useful to qualify for a patent, but it must be distinctive in its color, habit, soil, flavor, productivity, form, or other aspects.

Design Patents

Design patents are granted to protect new, original, and non-obvious ornamental designs for articles of manufacture. Examples include Apple’s 2009 and 2010 patents—No. D593087 and No. D618677—which covered among other things the unique, rounded-corner design of the iPhone, as well as its 2005 design patent No. D504889 for the look and feel of the iPad. Design patents can be just as valuable as utility patents, as Apple discovered when a jury awarded it $1 billion in damages against Samsung in August 2012, for the latter’s infringement of Apple’s utility and design patents. The case is currently on appeal.

Like plant patents, design patents also substitute a different test than utility in their requirements for patentability. Instead of the novelty, utility, and non-obvious requirements for utility patents, the criteria for design patents are novelty, ornamentality, and non-obviousness.

It was on the subject of design patents that one example of media confusion appeared. The New York Times published an article November 16, 2012, declaring in a sensational headline that “Apple Now Owns the Page Turn.” The article claimed that a new Apple design patent “gives Apple the exclusive rights to the page turn in an e-reader application.” According to the article’s author, this showed “just how broken the patent system is.”

Had the author of the article even read an obvious and easily-available source as the Wikipedia entry on design patents, however, he would have learned that design patents are granted only for nonfunctional ornamental designs. In fact, says Wikipedia, “design patents can be invalidated if the design has practical utility.”

What Apple actually “owns,” therefore, is not the “page turn” function itself but merely the particular ornamental design of the way a page turn is executed in their devices.

Another example of confused media reporting on patent matters was the February 6, 2013, Forbes article headlined: “Is the Patent System Broken? Well, Amazon’s Just Patented the Sale of Second Hand Goods.” Amazon actually did no such thing, but the author of that article probably made this assumption after reading the abstract of the patent describing its general subject matter. Like many reporters new to patent issues, the author didn’t realize that the abstract tells you literally nothing about the exclusive rights conferred by a patent. Only the claims of the patent detail the specific exclusionary rights of the patent holder.

Indeed, when you read the claims of the Amazon patent in question, you discover that Amazon hasn’t claimed ownership of the idea of a “market in second-hand digital goods” at all. Instead, the claims involve merely a very specific and novel method of conducting such a market. Meanwhile, Apple, ReDigi, and other firms have patented their own alternative methods of conducting a secondary digital market.

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