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How Long Does a Patent Last?

Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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Posted: Jul 26, 2014 @ 9:00 am
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Before June of 1995, the patent laws in the United States provided that the term of a utility or plant patent ended seventeen years from the date of patent grant. To comply with Article 33 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement resulting from the Uruguay Round Agreements of the General Agreement on Tariffs and Trade (GATT), the United States was required to establish a minimum term for patent protection ending no earlier than twenty years from the date the application was filed. Thus, the Uruguay Round Agreements Act amended 35 U.S.C. § 154, and these amendments took effect on June 8, 1995.

Generally speaking, utility and plant patent applications filed on or after June 8, 1995, have a term that begins on the date the patent issues and ends on the date that is twenty years from the date on which the application for the patent was filed in the United States. If the application that ultimately issues contains a specific reference to an earlier filed US or international application, the term ends twenty years from the filing date of the earliest such application. This patent term provision is referred to as the “twenty-year term.”

All utility and plant patents that were in force on June 8, 1995, or that issued on an application that was filed before June 8, 1995, have a term that is the greater of the “twenty-year term” or seventeen years from the patent grant. A patent granted on an international application filed before June 8, 1995, and which entered the national stage before, on or after June 8, 1995, will have a term that is the greater of seventeen years from the date of grant or twenty years from the international filing date or any earlier filing date relied upon for priority purposes.

The twenty-year patent term is the general rule. During the life of the patent it will still be necessary to make maintenance fee payments in order to keep the patent alive. Further, if there is delay introduced on the part of the Patent Office additional patent term will be added on to compensate the patent applicant for unwarranted administrative delay. The topic of administrative delay and the extension of patent term goes beyond this basic primer and relates to patent term extension (for patents issuing on applications filed on or after June 8, 1995, but before May 29, 2000) or patent term adjustment (for utility and plant patent applications filed on or after May 29, 2000). We will tackle patent term extension and patent term adjustment in another article at a later time. If you are interested in that topic please see Chapter 2700 of the MPEP.

What follows is discussion of some special circumstances relating to specific types of patent applications.

 

Design Patents

Design patents have a term of fourteen years from the date of the patent grant. 

 

Continuing Applications

A patent granted on a continuation, divisional, or continuation-in-part application that was filed on or after June 8, 1995, will have a term which ends twenty years from the filing date of earliest application for which a benefit is claimed as a result of either a US or international application, regardless of whether the application for which a benefit is claimed was filed prior to June 8, 1995.

 

International Patent Applications

A patent granted on an international application filed on or after June 8, 1995, which enters the national stage in the United States, will have a term which ends twenty years from the filing date of the international application. A continuation or a continuation-in-part application claiming of an international application will have a term which ends twenty years from the filing date of the parent international application.

 

Foreign Priority

Foreign priority is not considered in determining the term of a patent. Accordingly, an application claiming foreign priority has a term which ends twenty years from the filing date of the application in the United States and not the priority date.

 

Provisional Applications

Domestic priority under 35 U.S.C. 119(e) to one or more U.S. provisional applications is not considered in the calculation of the twenty-year term. The twenty-year term is calculated from the filing date of the non-provisional application that claims priority from the earlier filed provisional application.

 

About the Author

is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


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4 comments
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  1. minor note: the law has been amended for the term of design patents: design patents filed on or after December 18, 2013 have a term of 15 years.

  2. Anon-

    I don’t believe that is correct… at least not yet. The design treaty was not self actuating. It is my understanding that the design treaty will not go into force until such time as the USPTO has issued regulations in order to effectuate the treaty.

    -Gene

  3. Gene,

    One of the “technical corrections” bills passed after the AIA did effectuate the change.

    ” Design patents have a term of fourteen years from the date of patent grant, except for any design patent issued from applications filed on or after the date of entry into force of the Hague Treaty as to the United States, has a term of fifteen years from the date of patent grant (see Pub. L. No. 112-211). See 35 U.S.C. 173 and MPEP § 1505.”

    http://www.uspto.gov/web/offices/pac/mpep/s2701.html

  4. I am having a little trouble reconciling these two points. Please help.

    First point: “A patent granted on an international application filed before June 8, 1995, and which entered the national stage before, on or after June 8, 1995, will have a term that is the greater of seventeen years from the date of grant or twenty years from the international filing date **or any earlier filing date relied upon for priority purposes.**”

    Second Point: “an application claiming foreign priority has a term which ends twenty years from the filing date of the application in the United States and **not the priority date.**”

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