Patent Duration

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 What is a Patent?

If an individual is an inventor, they will want to protect their inventions from unauthorized use and distribution. Pursuant to federal patent laws, patents are given to inventors in order to exclude other individuals from “making, using, offering for sale or selling the invention” in the United States.

Therefore, patents are given to inventors to help protect their inventions. A patent will typically exist for 20 years and may be used for any invention in the technology field or industry field.

A patent may be obtained by filing an application with the USPTO (U.S. Patent and Trademark Office). This procedure is often detailed and many different requirements must be met.

A patent is a part of an international agreement with the World Trade Organization (WTO). Therefore, member nations of the WTO are expected to recognize and enforce legal patents.

What Types of Inventions can be Patented?

In general, in order to receive a patent from the United States Patent and Trademark Office, an invention is required to be:

  • New;
  • Unique; and
  • Generally unobvious.

There are different patents which may be available, depending upon the item an individual wishes to patent, including:

  • Utility patents: Generally, an invention is required to be a process or method with a concrete result, a machine, a chemical or biological composition of matter, or an invention improvement. To qualify for a utility patent, the invention is also required to be moderately useful;
  • Design patents: Generally, the design must be:
    • novel;
    • non-obvious; and
    • non-functional;
  • Plant patents: Plants that an individual creates can be patented. The plant must be novel and non-obvious. There are things that cannot be patented, including:
    • naturally occurring substances;
    • laws of nature;
    • ideas;
    • calculation methods; and
    • other things.

How Long Does a Patent Last?

A patent which is filed after June 8, 1995, lasts for a period of 20 years from the date that patent application was filed. If a patent was filed before June 8, 1995, it lasts for either 17 years from the date the application was granted or 20 years from the date the application was filed, whichever is longer.

The duration of the patent will also depend upon what type of patent is being filed. The validity of a patent includes the following:

  • Utility patent: 20 years from the date of filing if the patent was filed prior to June 8, 1995 or 17 years from the date the patent was issued, whichever is longer;
  • Utility patent: 20 years from the date of filing if the patent was filed after June 8, 1995;
  • Design patent: 14 years from the date of issue for design patents; and
  • Plant patents: 17 years from the date the patent was issued.

Do Patents Ever Expire Early?

Yes, in some cases, a patent can expire early. Some of the common manners that the duration of a patent term is cut short may include if a patent is found to be invalid or an inventor fails to pay the maintenance fees.

Once a patent expires, due to either the time limit expiring or the inventor failing to pay the required fees, the patent will go into the public domain and the following may be done by anyone:

  • Use;
  • Sell; or
  • Import.

The owner of the patent does not have rights over a patent once it expires, but the owner may bring infringement actions or enforcement actions if the patent was infringed during the time when the patent was valid and was not expired.

What Could Make My Patent Invalid?

Patents may be deemed invalid for several reasons. Typically, a patent will be found to be invalid during an infringement case when an accused infringer defends themselves by claiming that the patent is invalid.

  • Common reasons a patent may be found to be invalid include:
  • The invention was not actually patentable. If evidence can be presented that shows the invention lacked the requisite novelty, utility, or non-obviousness required for the patent, the USPTO can declare a patent invalid;
  • An individual obtained the patent fraudulently. Even if the invention was patentable, if an individual can show that the patent was received through deception of the USPTO, the patent can be declared invalid; and
  • The patent was used to commit illegal acts. If an individual uses their patent to engage in illegal conduct, the USPTO may declare the patent invalid.

What Are Maintenance Fees and When Do I Have to Pay Them?

An inventor is required to pay maintenance fees to the USPTO in order to keep a patent in force. Maintenance fees are due at specific times after the patent is granted, including:

  • 3.5 years;
  • 7.5 years; and
  • 11.5 years.

If, however, the inventor misses a deadline, they have a 6 month grace period to pay the maintenance fee in addition to a penalty surcharge to keep the patent in force. If the inventor fails to pay the maintenance fees, the patent will expire.

Can I Extend the Duration of My Patent?

In certain instances, an individual may be able to extend the duration of their patent. In general, if the USPTO or other government organization has deprived the individual of any enjoyment of the rights granted by the patent, an individual may get an extension.

No extension, however, will exceed five years. Common circumstances which result in the extension of a patent occur when:

  • The application is initially denied and the individual wins on appeal;
  • The USPTO takes a lot of time trying to decide if the invention infringes on another patent, and then decides it does not infringe;
  • The individual invented something that requires FDA approval before it can be put to commercial use, such as:
    • a drug;
    • medical device;
    • food additive; or
    • color additive;
      • The USPTO enacted the Patent Term Restoration Program to deal with this issue. The PTR Program restores up to 5 years from the time lost waiting for approval from the FDA.

How Can I Determine if My Patent is Still in Force?

In order to determine whether a patent is still in force or whether the patent has expired, the individual will need to access the USPTO website and the patent database. The patent website will allow an individual to access their patent information as well as determine when the patent will expire or if it already expired.

What is Patent Infringement?

When another party uses an individual’s invention or an invention with similar elements to the invention, they may be held liable for patent infringement. In order to show patent infringement occurred, the patent’s claims and elements must be compared with the device or invention which is suspect and if they match, infringement has occurred.

If this occurs, the inventor may enforce the patent in a federal court.

What is a Patent Attorney?

Patent attorneys or patent lawyers are lawyers who are authorized to practice patent law. Patent attorneys are required to pass exams called the patent bar in order to perform legal tasks which are related to patents.

Patent attorneys may do the following:

  • File for a patent;
  • Protecting a client’s patent rights; and
  • Filing a patent lawsuit.

It is important to note that not all attorneys are patent attorneys. Patent attorneys can also be referred to registered patent practitioners.

Do I Need a Patent Attorney?

If you have questions regarding the duration of your patent, it may be helpful to consult a patent attorney or a patent lawyer. Your lawyer can advise you of the rules governing the length of your patent term and can also help ensure that your invention is protected for as long as possible.

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