Navigating the world of patents can be complex. Understanding patent duration can be a key part of your patent journey. Patents offer inventors exclusive rights to their inventions. But these rights don’t last forever.
A modern U.S. utility or plant patent generally expires 20 years from the relevant nonprovisional filing date, not 20 years after grant. A U.S. design patent from an application filed on or after May 13, 2015 generally lasts 15 years from grant. Filing history, adjustments, extensions, disclaimers and early expiration can change the result.
By the end of this guide, you’ll have a comprehensive understanding of patent lifespans. We’ll also discuss factors that influence patent expiration, and we’ll look at the implications of patent duration for inventors, businesses, and startups.
What is a Patent?
A patent is a government-granted right that gives inventors exclusive rights to their inventions. It’s a form of intellectual property protection that prevents others from making, using, or selling the invention without the inventor’s permission. This exclusivity encourages innovation by allowing inventors to profit from their inventions.
Types of Patents and Their Durations
There are three main types of patents: utility patents, design patents, and plant patents. Each type of patent has a different duration.
Patent term defines when the particular patent’s rights expire. Expiration ends that patent’s exclusionary rights, but other patents, regulatory exclusivity, contracts or other laws may still restrict a product. Expiration is not a complete freedom-to-operate opinion.
Utility Patents
Utility patents protect new and useful processes, machines, manufactures, or compositions of matter. They are the most common type of patent.
A utility patent’s ordinary term generally ends 20 years from its relevant nonprovisional filing date, including an applicable earlier domestic or international filing in the benefit chain. A provisional filing does not ordinarily start that 20-year clock. Adjustments, extensions, terminal disclaimers and maintenance status must also be checked. See MPEP §2701.
Design Patents
Design patents protect new, original, and ornamental designs for an article of manufacture. They cover the appearance of an object rather than its functionality, and can be combined with a utility patent to protect the form of a product.
Design patents based on applications filed on or after May 13, 2015 have a 15-year term from grant. Earlier-filed design applications generally have a 14-year term from grant. U.S. design patents require no maintenance fees. See MPEP §1505.
Plant Patents
Plant patents protect new and distinct, invented or discovered asexually reproduced plants. This includes mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state.
U.S. plant patents generally have a 20-year term measured under the relevant filing-date rules. Unlike utility patents, plant patents do not require U.S. maintenance fees. The patent’s actual filing history and any applicable statutory changes should be reviewed.
Factors Influencing Patent Duration
The duration of a patent is not always straightforward. Several factors can influence how long a patent lasts.
One key factor is the type of patent. As mentioned, utility, design, and plant patents have different durations, so understanding which kind of patent you are filing for or have is important when assessing your specific patent’s lifespan. A seasoned patent attorney can help you confirm how long your patent will last.
Another factor is the payment of maintenance fees, paid to the United States Patent and Trademark Office (USPTO). For some patents, these fees must be paid to keep the patent in force.
Maintenance Fees and Renewals
Maintenance fees, also known as renewal fees, are payments made to the USPTO to keep a patent in force. These fees are typically due at regular intervals after the patent is granted.
U.S. maintenance fees generally apply to utility patents at 3.5, 7.5 and 11.5 years after grant. Design and plant patents do not require them. Late-payment windows, petitions and intervening rights can affect the consequences of nonpayment. Check the USPTO maintenance guidance.
Design patents, on the other hand, do not require the payment of maintenance fees in the United States.
Patent Term Adjustments and Extensions
In some cases, the term of a patent can be adjusted or extended. This can occur when the patent office has taken longer than usual to process the patent application.
Patent term adjustment can compensate for specified USPTO delays, with reductions or limits under the statute, including applicant delay. It is not an automatic extension for every long prosecution. Check the recorded adjustment and any correction deadlines.
Patent term extension under 35 U.S.C. §156 can apply to certain patents involving qualifying regulated products and regulatory review periods, subject to detailed conditions, limits and deadlines. Not every medical device, drug patent or period of product development qualifies.
The team at Schell IP has an extensive background in biomedical patents and can help you determine whether or not your patent is eligible for PTAs or PTEs. If eligible, our team can also help you file for extension.
The Impact of Patent Expiration
Expiration ends the exclusionary rights of that patent. Before making or selling a product, assess other relevant rights, including patents on improvements and separate regulatory or contractual requirements.
This can lead to increased competition, as other companies can now enter the market with similar products. It can also stimulate further innovation, as others can build upon the patented invention.
Entry of Generic Products
One of the most noticeable impacts of patent expiration is the entry of generic products. This is particularly evident in the pharmaceutical industry.
Generic entry can depend on other patents, regulatory exclusivity and approval requirements as well as the expiration of one drug patent. Do not treat a single expiration date as authorization to market a generic product.
Market Competition and Innovation
Patent expiration can also stimulate market competition and innovation. Once a patent expires, other companies can use the patented technology to develop new products or improve existing ones.
This can lead to a surge of innovation and the development of new technologies. It can also result in lower prices and more choices for consumers.
How to Calculate Patent Expiration
If you’re interested in understanding how long a patent for your invention would last, we recommend consulting a patent law firm like Schell IP. To understand how long a patent will last, a patent attorney may need a clear understanding of the patent’s filing date, type, and any adjustments or extensions.
For utility and plant patents, start with the relevant nonprovisional filing chain and the general 20-year endpoint, then assess adjustments, extensions and disclaimers. For design patents, confirm whether the filing date puts the patent in the 14-year or 15-year grant-based term regime.
It’s important to note that failure to pay maintenance fees can result in early expiration. Keeping track of these dates and fees is crucial for maintaining patent rights.
Understanding patent duration is crucial for inventors, businesses, and anyone involved in the commercialization of new technologies as patents can provide a competitive edge. It influences strategic planning, investment decisions, and market competition.
Schell IP can help transform your ideas into valuable assets for your business. Book a free consultation today.
Bring the actual patent record to a portfolio review
Inventors should collect the patent number, filing chain, grant date, recorded adjustments, terminal disclaimers and maintenance history. For medical device and pharmaceutical portfolios, coordinate any term-extension question with the applicable regulatory timeline. Book a Free Consultation to discuss the records and decision involved.
