How to Determine Patent Duration
The U.S. Patent and Trademark Office (PTO) protects patent rights for a maximum duration of 20 years. The duration will vary depending on the type of patent and what adjustments are applied. Patent rights will be terminated if requirements are not duly met. In addition, international patents also have a set duration. Each country will have different laws and ways of finding the information.
Determining the Type of Patent Application
Use the United States Patent and Trademark Office search feature.The U.S. Patent and Trademark Office (USPTO) is the storehouse of all pending and historical patent information. The USPTO has an online search engine that allows anyone to search for patent information. You will use this feature, at USPTO.gov, to look for all information regarding your patent search.In order to determine the duration of the patent that you have in mind, you first need to determine whether it is a design patent, a utility patent, or a plant patent. They have different duration lengths.
- If you want to expand your search to include European patents, you can find a similar search feature at EPO website at EPO.org.
Check for a design patent.Design patents are issued for new inventions that have unique or decorative design. These include furniture, ornaments, public structures, or patterns. If the object or material has some functionality, it is patented for its utility and not design.
Run a search for a utility patent.Utility patents are issued for the functional utility of an invention. The utility patent is the kind of application that most people tend to think of when they imagine what an inventor has accomplished.
Search for a possible plant patent.A plant patent is the kind of patent issued for the generation of a new variety of plant that can be asexually reproduced. This category may include hybrids or mutations, which may have been discovered rather than intentionally created.
Measuring the Length of the Patent Term
Identify the starting date.The term of a patent in the United States begins on the date that the patent application was actually filed in the U.S. This may differ from what is labelled the “priority date” or any filing date in another country.
- If the latest patent filing incorporates an earlier filing by reference, the term begins on the date of the first filing.
Measure the length of the patent term, depending on its type.The different types of patent applications have different duration lengths. Once you determine the type of patent application that you are investigating, you can determine the length.
- Design patents run for 14 years.
- Utility and plant patents that were filed before June 8, 1995, have a term of 20 years from the date the application was filed or 17 years from the date that the patent was granted, whichever comes later. Utility and plant patents filed after June 8, 1995, have a term of 20 years from the application date.
Check to see if any patent term extensions or adjustments apply.Some patents, because of temporary delays in the U.S. Patent Office, have been granted minor extensions. If an extension has been granted, the length of the extension will appear on the patent paperwork.
Deciding if a Patent has Terminated Prematurely
Check if the patent in question requires maintenance fees.By law, holders of utility patents issued after 1980 must pay maintenance fees to maintain the patent. So the first step in checking for premature termination is to determine whether the particular patent was of the utility type.
- All utility patents require the payment of maintenance fees. Plant and design patents do not. If you are the holder of the patent, you will not be notified when your payment is due, but you will be notified if you are late. At that point, a surcharge fee will be assessed as well, before the patent is terminated.
Determine if the payments were made.Payments are due at three intervals, 3.5, 7.5, and 11.5 years from the date that the patent was granted. The patent holder may make payment anytime within the six-month period before the payment comes due.
Check the USPTO Official Gazette for termination information.The Official Gazette publishes weekly information about patents whose maintenance fees are due and those that are in default. You can search copies of the Official Gazette online from 1964 through the present.
Using a Quick Online Patent Term Calculator
Use the USPTO online calculator.The U.S. Patent and Trademark Office has a simple patent term calculator that is available for informal and unofficial calculation of a patent’s term. The USPTO cautions on its website that the calculator does not provide a legal determination of the patent term, but it is a useful estimating tool.
Gather the information that you need to measure the patent term.Before you begin using the online calculator, make sure that you have the data that the calculator will ask for in making its estimation. This information includes:
- type of application
- filing date
- grant date
- any adjustments or extensions
- timely payment of maintenance fees
Download the USPTO online calculator.On the USPTO website, you will find a link to download the calculator. Make the selection, and it will open a spreadsheet in Excel. You may rename the file and save it for future use.
- The spreadsheet consists of multiple worksheet pages. Check the tabs at the bottom of the screen for helpful information about completing the calculator.
Use the calculator spreadsheet to obtain an estimated termination date.Fill in the spaces of the spreadsheet with as much accurate data as you can. The better your data accuracy, the better your result will be.
Use other online calculators as well.If you perform a quick Internet search for “patent term length,” you will find numerous articles and websites on this topic. Many patent lawyers and law offices offer quick calculating tools that you can use to estimate the duration of the patent you are investigating.
Determining the Length of International Patents
Use each country's government intellectual property website.Patent protection is not unique to the United States. In fact, almost every major country in the world offers some form of protection for inventions. Most countries will allow you to search patent information using a government database. Within these databases will be information regarding patent applications, their status, and their duration. Do an online search to find each country's search engine.
- In Australia, for example, you can do patent searches online for free. To do so, use the official AusPat website. , which is run by the government.
- In the EU, you can do patent searches online for free using the Espacenet patent search.
- In Japan, you can get patent search results, in English, using the Japan Platform for Patent Information website.
Search using allowable criteria.Each website will limit the information you can use to search for patents. Make sure you read each website's directions to understand how to optimize your search. For example, the EU has a general search box where you can type in any information you want.Australia, on the other hand, asks you to search using application numbers, applicants, inventors, filing dates, and abstracts.Japan allows you to search using patent numbers, design numbers, classifications, or simple text.
Identify the type of patent you are working with.The duration of protection received for a patent will depend on the country the application was filed in and the type of patent that was asked for. In most countries (e.g., Australia, Canada, the European Union, France, Germany, Israel, Japan, South Korea, and the United Kingdom) the standard patent term is 20 years. However, patents for certain products can receive additional coverage depending on the country you are in.
- For example, in Australia, the patent term can be extended for pharmaceutical substances. You can see what type of patent is being applied for in your search results. In Australia, look for the "patent application type" or the "invention title". This information will give you clues about what is being patented.
- In the European Union (EU), the patent term can be extended through the use of supplementary protection certificates (SPCs). SPCs can be granted for medicinal and plant protection products.
- In Japan, the duration of a patent can be extended in circumstances where the invention was required to go through extensive regulatory approval before its use.
Determine when the patent application was filed.Almost every patent term begins as of its application date. Therefore, in order to determine an international patent's duration, you must know when the application was filed. Within your patent search using international government websites, the results you find will usually include this information. When you find the patent you are looking for, scroll through the information on the website until you find the "filing date".
- For example, in Australia, your search results will simply tell you when the patent application was filed. It will be under the heading "filing date" and will be in the format of "2005-04-29".
- In Japan, your search results will make this date clear as well. Within your results will be the "date of filing", which will be in the format "12.09.2013".
- In the EU, the filing date is a little more difficult to find. The only date that is readily available using the EU search function is the "priority date", which is the date the very first patent application was filed.In a lot of circumstances, the priority date can be used as the filing date for purposes of determining a patent's duration.
Measure the initial patent term from the filing date.Because most initial patent terms are measured from the filing date, you can usually count 20 years out after the filing date to determine the term. For example, if the patent application was filed on 2005-04-29, the initial patent term would extend to 2025-04-29. However, this will not give you a definitive patent term. Be careful not to use this method alone. The duration of patents will vary depending on the circumstances.
Check for patent adjustments that could lengthen the term of an international patent.Certain types of patents can get adjustments to the length of their protection. These adjustments will usually add a maximum of five years onto the end of the original patent expiration date.For example, if a patent was set to expire in 2020 but was granted the maximum adjustment, the patent would not expire until 2025.
- If an official adjustment has been granted, you will see it in your search results. After completing your initial patent search, look through your results to see if there are any adjustments being made to the duration of the patent. Different countries will convey this information differently.
- In Australia, for example, you can find out this information by looking at the "patent application type" and the "expiry date". This information will tell you what type of application was filed and when the patent expires.
Look for an expiration date in your search results.Some search results will simply provide you with an expiration date. If the country you are searching in does this, you can use this date to definitively determine the patent's duration. For example, in Australia, your search results will provide you with an "expiry date", which is the date the patent expires.
QuestionIf i designed a specific process and patented it in 1979, would it now have expired and is there something which outlasts the patent like design rights?wikiHow ContributorCommunity AnswerA patent issued in 1979 would have expired by now. You'll have to check with a patent attorney for the rest of your question.Thanks!
- Patent infringement can be a serious and costly matter. If you a relying on the expiration of a particular patent, you should consult with an experienced patent attorney.
- If there are corrections to be made due to error in patent process, a reissue patent is issued and will not affect the protection of original patent.
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