Unlike some other forms of intellectual property, patents cannot be renewed for an indefinite period of time. Most notably, trademarks have a different process for renewals. Instead, patents have an expiration date and the length of a patent varies based on a range of factors. Calculating the term of a patent can be difficult and can involve a number of factors, as discussed briefly below.
1. What type of patent is it?
The first step in understanding the term of a patent (how long it can last) is knowing what type of patent is in question. For instance:
- Design patents currently have a fifteen-year term (lasting 15 years) calculated from the date the design patent was granted.
- Utility patents, on the other hand, currently have a term of twenty years (lasting 20 years) calculated from the earliest filing date or priority date.
Importantly, however, we often cannot simply add fifteen years to the issue date (in the case of a design patent) or twenty years to the priority date (in the case of a utility patent) to definitively calculate the term of a patent. Rather, there are a number of other factors that must be considered, including but not limited to its filing date, whether maintenance fees are required and timely paid, whether a terminal disclaimer has been submitted, whether there are any patent term adjustments or extensions, etc.
Visit our blog post on “How to File a Patent Application for a New Product or Invention” to learn more about the patent application process.
2. What is the filing date?
Although the term of a design patent is calculated from the date in which the patent was granted, the filing date can also impact when the design patent will expire. More specifically, while the current term is fifteen years, design patents granted on applications filed on or before May 13, 2015, are given a fourteen-year term,
Similarly, the filing date or earliest priority date of a utility patent can also impact its term. For instance, although a patent is not enforceable unless and until it is granted, the term of a utility patent is calculated from the earliest filing date, not the issue date. Furthermore, if the utility patent was filed on or before June 8, 1995, it will expire seventeen years from the priority date, as opposed to the current twenty-year term.
3. Are maintenance fees required?
For utility patents, maintenance fees are official government fees that must be paid in accordance with a periodic schedule – design and plant patents do not require the payment of maintenance fees. It is important to track the maintenance fee payment schedule, as failure to timely submit a maintenance fee will result in the automatic abandonment of the patent.
Further, while the term of a utility patent is calculated from the earliest filing date, the maintenance fees are calculated from the grant or issue date, as follows:
- the first maintenance fee is due 3.5 years from the issue date,
- the second maintenance fee is due 7.5 years from the issue date, and
- the third and final maintenance fee is due 11.5 years from the issue date.
Importantly, the maintenance fees can only be submitted within a window starting six months before the corresponding deadline. For example, the first maintenance fee can be submitted no earlier than 3 years from the issue date. Late submissions up to six months after the deadline may be accepted with the payment of an additional surcharge.
Overall, it is important to have an understanding of what type of patent application is submitted, the significance of the filing date, and knowledge of maintenance deadlines to ensure the continuation of patent rights. How long a patent lasts depends on these factors. If you have any questions about filing a patent application or need assistance with the maintenance of an existing patent, please contact an IP attorney at Gerben IP for a free consultation.