In today’s challenging economic climate, a strategic patent portfolio is crucial to a medical technology company’s growth and survival, because it can provide numerous business advantages. Although patents are extremely important for medtech companies of all sizes, patents make up a significantly greater portion of enterprise value for early-stage medtech companies. Patent portfolios are often the only way for investors to place a value on an early-stage company’s technology, as sales often cannot begin until after FDA approval.
When developing patent portfolios, design patents are often overlooked in favor of utility patents. Although generally having a more limited scope of protection, design patents can still deter potential infringers in the U.S. and foreign countries. For example, in a recent case involving smartphones, a substantial portion of the plaintiff’s billion-dollar verdict was based on the infringement of design patents. Design patents may play an important role in protecting the medtech company’s innovations and creating competitive advantages.
Differences between design patent and utility patents
In developing patent protection strategies for a product, medtech companies often rely solely on utility patent protection and fail to consider design patent protection. Yet many medtech companies can gain additional product protection by using design patents.
Both utility and design patents grant the owner the right to exclude others from making, using, selling, offering for sale or importing the patented invention in the U.S. Both utility and design patents also conclude with at least one claim that provides a concise legal definition of the invention. However, in most aspects, design patents and utility patents are very different.
Utility patents protect the operational or functional features of a product. They are complex and lengthy legal documents that include a thoroughly written description, detailed drawings of the invention, and multiple claims of varying scope defining the invention. Often, the claim coverage is different (broader or narrower) than the exact product shown in the drawings. The term of utility patents is generally 20 years from the effective filing date of a patent application. To keep issued utility patents in force, maintenance fees must be paid at 3.5, 7.5 and 11.5 years after the utility patent is issued.
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