How Long Do Patents Last?

How long is a patent good for?

In the United States, patent protection can last anywhere from 14 to 20 years from the initial patent application filing date. The exact length of time will depend on the type of patent issued and the date it was issued.

Patent duration times have changed throughout the years and are ever evolving. For example, prior to June 8, 1995, the average duration of most patents was 17 years, but the Uruguay Rounds Agreements Act extended this timeline to 20 years. The purpose of this extension was to comply with international standards for intellectual property laws, as outlined in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1994.

Utility patent duration

Utility patents are the most common type of patent and last for 20 years past their initial application filing date, provided that date is on or after June 8, 1995. However, utility patents also require regular maintenance fees, paid at regular intervals, to keep them active. These maintenance fees are paid at 3.5 years, 7.5 years, and 11.5 years following the date of issue and the exact fee amounts for each time frame can be found on the United States Patent and Trademark Office (USPTO) fee schedule.

Utility patent term extensions

In certain instances, the term of a utility patent could be extended past the typical 20 years. Extensions are granted for a number of reasons, most of which are due to delays that may occur because of inaction on the part of the USPTO or delays from certain regulatory agencies that may be overseeing certain patent-protected products, such as the U.S. Food and Drug Administration (FDA). 

For example, imagine you invent a new drug to cure the common cold and are successfully granted a patent for it. However, you need to wait for FDA approval before you can actually sell your product commercially. In this instance, an extension to your patent could be granted to you to help make up for time lost while waiting for the FDA approval process to play out.

Design patent duration

Design patents protect the unique visual design aspects of a product. Those that were applied for on or after May 13, 2015, have a duration of 15 years. Design patents with applications filed before this date have a lifespan of 14 years from the date of their initial grant. Unlike utility patents, design patents do not require regular maintenance to remain enforceable.

Plant patent duration

Plant patents cover the invention of new, distinct varieties of plants. Similar to utility patents, plant patents last for 20 years past the date the initial application was filed. But unlike utility patents, plant patents don’t require ongoing maintenance.

What happens when a patent expires?

Once your patent expires, whether that’s because it reached its term limit or you failed to pay any required maintenance fees, your product or technology enters the public domain. This means that you no longer have the exclusive right to produce and sell your invention and others day develop products that are similar or identical to it without infringing on your intellectual property rights.

If you own a utility patent that lapsed due to unpaid maintenance costs, you could opt to sell your expired patent to an interested buyer. The buyer could then choose to pay to reinstate the patent, allowing them to have exclusive rights over the product until the final expiration date.

6 things to do before you patent expires

While patents can’t be extended past their expiration date in most cases, there are certain steps you can take to retain some protection over your intellectual property, even if your patent is expired.

1. File for a continuation-in-part application (CIP)

If you improve, alter, or otherwise modify your invention in any way during the lifespan of your patent, you may wish to take steps to protect your changes by filing a continuation or continuation-in-part application. These filings offer protection over the changes you make, and both have the potential to expand the scope of the protection your patent affords, but there are some differences between the two filing types.

A continuation application allows you to modify the original claims of your patent, but does not allow you to add new claims to the existing material. And, because you are only making slight alterations to the existing claims, any changes you make will be subject to the original application date of your patent. Meaning that while your continuation application may extend the scope of your patent, it will not extend its life in any way.

A continuation-in-part application, on the other hand, can include new information or claims that weren’t a part of the original patent. In this case, any claims added that weren’t a part of the original patent application would essentially have a brand new filing date and would be protected for 20 years from the CIP filing. 

It’s important to note, however the CIP does not extend the original patent’s life. It only offers the same length of protection to any new content you have added. After 20 years have passed from your initial patent application, only those aspects that were added later would continue to be protected past that date.

2. Explore Patent Term Extensions (PTE)

As touched upon previously, certain products may qualify for a term extension if they are subject to regulatory delays. Pharmaceutical drugs, medical devices, and certain food products are examples of products that may qualify for such an extension.

The intent of the extension is to help compensate patent owners for any time lost due to the often-lengthy regulatory approval process that many new food and drug products must undergo before they can be sold on the commercial market. If you own a patent for this type of product, applying for a PTE can ensure you are able to fully capitalize on the financial potential of your product for as long as possible.

3. Consider trade secret protection

Patents aren’t the only way to protect your intellectual property. If you make future improvements to your product, you can consider keeping them as trade secrets instead.

Unlike patents, which are publicly disclosed, trade secrets are closely guarded. And while any member of the public could replicate your invention once your patent expires, trade secrets can potentially be protected in perpetuity, or so long as the secret is maintained.

Imagine, for example, that you are the owner of a top secret chocolate chip cookie recipe. Your recipe isn’t patented, but so long as you—and everyone else who knows the secret recipe—keep it a secret, no one else can make and sell cookies that taste exactly like yours. Unless, of course, they happen to correctly guess how you make your cookies.

While trade secrets are protected under the law, that protection is somewhat limited. As the owner of the cookie recipe, you would typically have to prove that someone knowingly stole your recipe and that they didn’t just come up with the same recipe on their own. 

Still, keeping a closely guarded trade secret can be a good way to protect your idea beyond the term length of a patent. Just make sure you follow the best practices for protecting a trade secret if you decide to go that route. 

4. License your invention

If you are the patent owner of a popular invention or product that other companies want to make and sell, you may want to consider licensing your invention before your patent runs out. By licensing, you essentially give someone else the right to use your intellectual property in exchange for a share of the profits.

If you’re interested in licensing your product, it’s best not to wait until right before the patent expires. Remember: an expired patent enters the public domain, so any interested companies could just wait a few months rather than paying you for your ideas. As with most things in life, timing is everything when it comes to getting a good licensing agreement deal.

5. Combine your patents with other forms of protection

There are many ways that you may choose to protect your intellectual property, and it’s important to remember that you don’t need to limit yourself to just one. If you’re a utility patent owner for an invention and your invention has a distinct design, you could also apply for a design patent to protect the look of your product and prevent copycat inventors from making one that looks similar.

Combining patents with trade secrets and other forms of protection like copyrights or trademarks can also strengthen your claim on your intellectual property and may deter others from trying to steal your idea.

If you’re looking for help protecting your intellectual property, LegalZoom’s IP services can help you make use of all the options available to you.

6. Increase marketing efforts

Building up a loyal customer base before your invention enters the public domain can help you prepare to face an onslaught of competitors who may be gearing up to sell the same invention. A proactive and robust marketing strategy can help you stay ahead of the game, especially if you come up with clever ways to differentiate your original product from any copycats that are soon to enter the picture.

FAQs

How do I check when a patent expires?

To check when a utility or plant patent expires, find the date the patent application was filed. Both these types of patents are good for 20 years from the filing date.

To check when a design patent will expire, you must first find the issue date of the patent grant, not the filing date of the application. The design patent will expire 15 years from the date of grant.

Can a patent be extended?

Patents typically cannot be extended. But if you add new information to your patent using a continuation-in-part application, the new material you added can enjoy patent protection that may extend past the life of your original invention’s filing. 

Does the patent term include the time my application was pending?

For utility patents and plant patents, yes, since these patents have a term that begins on the date of the initial application filing. For design patents, the term begins on the date the patent was issued.

How long do international patents last?

Like U.S. patents, international patents also have a lifespan of 20 years past the initial application filing date. While the term lengths are standardized for domestic and foreign patents, it’s important to note that patent rights are territorial, meaning that they are typically only recognized in the country where the patent was applied for and granted.