How Long Does a Patent Last?
“How long will my patent last? What are my rights?”
These are questions I’m often asked at the beginning of the patent process. A utility patent lasts for 20 years after the date it was filed. Usually, the next question is if it’s possible to extend a patent. The answer is no, except in some very special pharmaceutical patents. At the end of 20 years, your patent has expired, and that’s the limit of your monopoly. Your utility patent can expire before that. And why is that?
Patent Maintenance Fees
The government expects to be paid for maintaining the patent. Why, you may wonder, does it need a new roof? Does it need a paint job like my house? No. It’s just a matter of having to pay the government a maintenance fee at 3.5, 7.5, and 11.5 years.
Maintenance fees are extremely important. That is why when a client first starts working on a patent application with me, I make it very clear in my retainer agreement that they will be responsible for paying those maintenance fees should they be awarded a patent. The United States is not the only country that requires maintenance fees; almost every country requires periodic payment, sometimes yearly, to maintain a patent’s enforcement.
What if you miss a payment? It happens all the time, unfortunately. Sometimes people deliberately let the patent expire because they were short on money, and they realize later that it was a mistake. In the past, if you deliberately let it expire, there was no redeeming yourself. The law has changed since then and now the Patent Office doesn’t want to know why you didn’t get your maintenance payment in on time — but you have to pay a very large petition fee to have the Commissioner for Patents consider your request. In the meantime, your patent is still expired.
What if someone tries to copy your patented invention? During that interim, what happens if somebody is looking up patents, sees yours, and decides that it’s a great idea — and then, as a bonus, sees that your patent expired early? You can regain your full rights if you pay a late fee and a petition fee for your maintenance. That means if someone else tries to imitate your patented design, you can go back and sue them for having infringed once your patent is restored. That said, it’s a very complicated situation, and it’s not advisable to let your patent lapse.
A design patent last 15 years after the date they are issued, and there is no maintenance on them. In other words, once you get a patent for your design, you are home free.
If you have any questions — or if you have a patent that you think you may have inadvertently let expire — consult your local patent attorney or contact me.
Patricia P. Werschulz
Werschulz Patent Law, LLC
23 North Avenue East
Cranford, NJ 07016