What is the “patent term” for Utility Patents and Design Patents?
Patents are not perpetual and can be thought of as limited (exclusionary) property rights which are provided by the government in exchange for an Applicant(s) providing a full disclosure of their invention. Utility patents granted by the United States Patent and Trademark Office (USPTO) generally have a patent term of 20 years from the date of filing (see details below for patent applications filed prior to June 8, 1995), while Design patents have a term of 14 years from the patent grant date. However, it should be noted that:
“All patents (other than design 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. See 35 U.S.C. 154(c). A patent granted on an international application filed before June 8, 1995, and which entered the national stage under 35 U.S.C. 371 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 under 35 U.S.C. 120, 121 or 365(c).” (see MPEP 2701 – Patent Term).
It is critically important that the Patentee pay the required patent maintenance fees at certain specified intervals to keep the patent in force, otherwise the patent term will be shortened prematurely. Upon the expiration of the patent term, the general public is allowed to freely practice the claimed invention recited in the expired patent.
It should be noted that if the Applicant filed a provisional patent application, the patent term of the subsequent non-provisional patent application (or PCT application) is measured from the non-provisional patent application (or PCT application) filing date. Accordingly, by filing a provisional patent application, the Applicant may in essence extend patent term by the maximum of a year (assuming the non-provisional patent application was filed one year after the provisional patent application filing date).
The term of a patent may also be extended due to certain delays caused by the USPTO (Patent Term Adjustment (PTA)). However, it should be noted that PTA may be reduced due to certain activities of the Applicant (e.g., responding to an Office Action beyond three months, submission of an amendment under 1.312, etc.)) (see USPTO – PTA Questions and Answers)