Watson IP Group

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How Long Does a Patent Last (Calculating the Patent Term Length)

Three Types of US Patents

In the United States there are three types of patents, utility patents, design patents, and plant patents.  Each of these types of patents covers a different area. Utility patents are directed to a useful invention that has functionality, with functionality being the key to a utility patent. A design patent covers ornamental features of a device. A plant patent covers a new variety of a plant.

Term Length of a Utility Patent

In the following article, our IP lawyers will eplain how the lenght term of the US Patent is determinded. Today, the term of a utility patent is 20 years in the US from the initial filing and is generally deemed enforceable from the date of issuance. Depending on delays at the USPTO in reviewing the patent application, or any responses received from the inventor may result in an extension to the term of the patent. These patent term extensions may be very important in some fields, such as pharmaceuticals, where every day of patent protection can equate to millions of dollars of revenue.

There are other limitations that may affect patent term. The patent term is determined from the date of the earliest filing (with provisional application not counting). Thus, on continuation application, or a divisional application, or a continuation-in-part application, the term is calculated from the earliest filing date of any prior application in the chain, not including a provisional patent application. In more detail, a provisional patent application that is converted to a utility patent application, and that eventually matures into a utility patent has a term of twenty years (20 years) from the filing date of the conversion. A provisional patent application does not count toward the twenty year term. In some areas of technology, this extra year of protection can be quite valuable, whereas, in other areas, the speed to protection is greater than extending the term at the tail end.

Maintenance fees are required to keep a Utility Patent in force and effect. Over the term of the patent, three separate maintenance fees are required, and they are sequentially due 3.5 years, 7.5 years and 11.5 years after issuance of the patent. These can be considered three separate tax payments that need to be paid at the intervals identified in order to keep the patent alive and to keep it from expiring. These maintenance fees are relatively new in the US compared to other countries. In the US, maintenance fees were first instituted in the 1980’s. In many foreign countries, yearly fees must be paid (often referred to as annuities) to keep a patent alive, and, if they are not paid, then the patent will lapse.

Term Length of a Design Patent

The term of a design patent is fifteen years (15 years) from issuance. You may come across a fourteen (14) year term on many issued design patents, as the rule change extending the term of a design patent from fourteen to fifteen years occurred on May 13, 2015. Thus, a design patent that issued prior to May 13, 2015 has a term of fourteen years (14), and, any design patents that issued on or after May 13, 2015 have a fifteen year term. There are no maintenance fees for a design patent.

Term Length of a Plant Patent

The term of a plant patent is also twenty years. There are no maintenance fees for plant patents.

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