Monday, November 30 2020

What is the life of a patent in the US?

Traskbritt

How long does a US patent last?

The term for which a utility patent is valid is generally 20 years from the date of filing, and the term for which a design patent is valid is generally 15 years from issuance. However, the term of a patent can vary depending on a myriad of factors including priority claims, payment of maintenance fees, terminal disclaimers, and regulatory (e.g., government) delays. 

 

How have patent terms changed?

The first patent act of 1790 gave patents a life of up to 14 years from the date of issuance, where the duration for each patent was decided individually by a board that ultimately approved the patent. In 1836, Congress passed a new patent act that allowed for extensions of up to 7 years, making the maximum patent term 21 years. Congress removed the 7 year extension to patent terms in 1861 and changed the standard term to 17 years. The duration of patent terms remained at 17 years for 134 years until Congress passed the Uruguay Round Agreement Act in 1994 to bring US patent law more in accordance with international custom. Beginning on June 7, 1995, patents had a 20 year term, and the patent term would start from the date of filing and not the date of issuance as had previously been the law.

The term length for design patents filed on or after May 13, 2015 changed to be 15 years from the date of issuance, while design patents filed before that date still have a 14-year term from issuance. 

 

Find your patent filing date

To know the exact patent expiration date, you need to know the filing date of the patent. Finding the filing date of a patent can be somewhat complex since patents in the U.S. can receive priority from provisional applications, international or foreign applications, and earlier related applications. In most cases, filing dates are recorded by the patent office and can be found on public USPTO databases. If you file a provisional patent application, your priority date is maintained as the filing date of the provisional application, but you can use the filing date of the non-provisional application for purposes of determining a patent term.

 

Term extension

Knowing the filing date may not be enough to know when a patent will expire, as patent terms are commonly adjusted and extended for various reasons. For example, if the patent office takes more than 14 months to respond to the patent application with an office action or a notice of allowance, a term extension may be applied to the patent. After an applicant responds to an office action, the patent office has 4 months to reply or another extension may occur. 

Another consideration in patent term extension is the Hatch-Waxman act. This 1984 law allows patent holders to receive an extension due to the time that their patented product is not commercially available while waiting for regulatory approval. This is most commonly associated with pharmaceutical companies who must receive FDA approval before marketing and selling their products, a process that may take several years. 

 

Patent upkeep and maintenance fees

US patent maintenance fees are required after the issuance of a utility patent in order to maintain and keep the patent valid and enforceable. Maintenance fees are not required for plant or design patents. The USPTO Fee Schedule describes the total cost and timing of fees due, including filing fees. Maintenance fees are due 3.5 years, 7.5 years, and 11.5 years after issuance of the patent. The amount due to the patent office increases with each fee iteration. The amounts depend on the size of the entity that owns the patent. Patent owners may pay their fees up to six months before the deadline. Additionally, if a patent owner misses the deadline, a surcharge of $160 is applied to the maintenance fee and the total fee and surcharge must be paid within a grace period of 6 months after the due date. If a patent owner fails to pay the corresponding fees after the late fee deadline, it is still possible to maintain the patent rights by filing a petition stating that the failure to pay was unintentional. Ultimately, if a maintenance fee is not paid, a patent term will expire. 

 

Can a patent be renewed after its lifespan of 20 years?

After patent expiration, the invention is in the public domain and the rights of the patent cannot be retaken by the original owner nor can anyone else claim the rights of the invention. A primary purpose of patent law is to promote open innovation and incentivize people to share their inventions with the world. In this way, the public receives the benefit of the know-how of an invention, and the inventor receives intellectual property rights for a limited period of time. 

Obtaining and maintaining a patent is very valuable if done correctly. The intellectual property experts at TraskBritt are more than capable of ensuring you receive proper protection for your ideas. For more information on how to obtain and maintain a US patent, get in contact with the registered patent attorneys at TraskBritt today.

Article written by K. Russell Griggs