You’ve created your innovation, built the prototype, and now you want to protect it so that you can build a business around it. Patents exist for cases like this and can provide strong protection for your IP and your eventual business. But how long does that protection really last?
It’s no small consideration. Filing for a patent is a long and often expensive process that involves a great deal of time and effort. If your issued patent were to expire or become abandoned, your time, money, and effort go down the drain.
Unfortunately, the answer of how long a patent lasts isn’t as simple as a single number. Here’s a closer look at the many factors that may affect the duration of your patent.
What is a Patent?
First, a patent is a limited duration property right relating to an invention extended for the public disclosure of that invention. In the U.S., patents are issued by the United States Patent and Trademark Office (USPTO).
Patents are not to be confused with trademarks (a word, phrase, symbol, or design distinguishing one party’s goods from another) or copyrights (original works of authorship including literary, dramatic, musical, or artistic works).
Patent Terms by Type
Before we go any further, it’s important to know the different types of patents. That’s because a patent’s duration is determined by the type of patent in question.
There are three types of patents under U.S. law:
- Utility patents
- Design patents
- Plant patents
Utility patents are granted for new and useful inventions that are not obvious to others in the field of invention. This is usually the type of patent that people think of–a patent for a whole new idea. There are five categories of utility patents: process, machine, manufacture, the composition of matter, or improvement of an existing idea.
Design patents are much more specialized and thus less common than utility patents. Rather than covering the functionality of an item, they cover the design of a manufactured device, essentially its “look and feel.” This could be for a particular shape of a product, such as the curved, capsule-like look of an Apple AirPods case, or it could be for the design of a product, like a LEGO mini figure.
Plant patents, as the name suggests, are granted for novel, non-obvious, asexually reproducible plants. This type of patent is typically used by research scientists or agricultural specialists.
So, How Long Does That Patent Really Last?
With all that said, let’s loop back to our original question–how long does a patent last? To put it simply, the duration of your patent depends on two things:
- The earliest non-provisional filing date
- The type of patent
For design patent applications filed on or after May 13, 2015, an issued design patent lasts 15 years from the issuance date. For design patent applications filed before May 13, 2015, the design patent lasts 14 years from the issuance date.
Utility and plant patents are easier – you have 20 years of patent protection from the earliest non-provisional filing date. If multiple “child” applications are filed from a “parent” patent application, the child patents may be limited to 20 years from the date when the earlier parent application was filed.
In certain cases, where there were delays introduced because of procedural delays at the USPTO, you are entitled to receive extensions called Patent Term Adjustments. Most of the time, though, the non-provisional application filing date becomes the basis of your patent expiration date calculation.
What About Provisional Patents?
Things can get a bit trickier with the introduction of provisional patent applications.
Some inventors chose to file a provisional patent application prior to filing their full non-provisional patent application as a cost-effective way to ensure they get a filing priority date for their invention. In most of the world (including the U.S.) the first to file a patent application can claim patent priority.
However, a provisional patent application is merely a placeholder. It is not examined for patentability and therefore cannot become a granted patent–it simply protects the date of filing and expires after one year. Savvy inventors often rely on provisional patent filings to finalize prototypes, find investors, and then craft their full patent application during that one year “grace period.”
The important point for our purposes is that a provisional patent does not count toward the calculation of the 20-year patent protection period. It does not extend your protection period either. Remember, you can’t get an issued patent from a provisional patent application, unless you convert it to a non-provisional patent application. It’s just a placeholder.
Ending Protection Before the Term Expires
There are some cases where patent protection may end before the originally granted patent term. Most of the time, in standard situations where there is no reason to end the patent protection early, the patent will last its complete term as long as you keep paying the required maintenance fees.
At times, you may wish to expressly abandon a patent application before it issues into a patent, or you may allow an issued patent to expire because the invention is no longer core to your product development. That’s a perfectly valid business decision in some situations.
One case where a patent term may be cut short is if the issued patent later found to be invalid. This typically happens in an infringement lawsuit if a defendant shows that the patent forming the basis of the lawsuit is invalid.
This could be for any number of reasons – anticipation of the invention by a prior publication, misconduct or illegal actions while during patent prosecution, or fraud against USPTO are all common culprits.
So, how long does a patent last? The short answer is: it depends.The good news? You don’t need to fight your way through the process on your own. At Patents Integrated, we help guide hardware founders through every stage of the patent application process. Ready to take a smarter approach to IP? Click here to get started.