Patent TermIf the maintenance fees are not paid, the patent expires at the end of the surcharge period (4.5, 8.5 or 12.5 years after issue). Expired patents may be revived up to 24 months after they expire, so long as the failure to pay the fee was unintentional. If the expiration date was more than two years in the past, the patent cannot be revived. You can use the USPTO's Patent Application Information Retrieval (PAIR) system to determine if maintenance fees have been paid Effect of Terminal Disclaimers on term extensions:
Extensions for FDA approval - term is extended past disclaimer date:
Extensions for USPTO delays - term is not extended past disclaimer date: Patents based on applications filed on or after May 29, 2000 (actual filing date, not priority date), might have had their terms extended for Patent Office delays beyond certain limits. The term extension, if any, is printed on all new patents, on the first page of the patent image, flagged with "(*)". Was there any reexamination or voluntary disclaimer which resulted in a loss of some or all of the claims? This would be noted on a certificate attached to the patent image on the USPTO database, usually as the last page in the image file. On rare occasions, issued patents are withdrawn from issue on the order of the Commissioner of Patents. In these cases, the patents are usually not available on the USPTO database (but sometimes they are on other databases, such as the EPO's Espacenet or the commercial Delphion system). Special Cases: Some patents have had their terms extended based on extreme delays in government approvals outside the Patent Office. This is very unusual, and applies almost always to pharmaceuticals (for example, Claritin® or Prozac®), food products (Aspartame) or medical devices or procedures, where FDA approval can sometimes eat up most of the patent term before the drug can be brought to market. For a list, see the Patent and Trademark Office's Extended Term List Some patents have less than the usual life span because their terms are limited to the terms of earlier-issued patents. This is called a "terminal disclaimer", and is a result of filing two applications, which claimed essentially the same invention. Terminal disclaimers will be marked on the later-issued patent. Sometimes an asterisk flags these after the patent issue date, but sometimes they only appear in the text of the patent or with the "related application" data on the face of the patent. Normally, for patents which come under the 20-year-from-filing term, this will have little practical effect if the patent with a terminal disclaimer is based on the same parent as the first application - for example, if it is a continuation, continuation in part or divisional of the earlier patent (this will nearly always be the case). However, if a terminal disclaimer is filed, and the earlier patent expires early, so will the patent subject to the disclaimer. Utility Patents or Plant Patents based on applications which were pending on June 8, 1995 (actual filing date, not priority date), and any utility or plant patent which was issued and not expired as of June 8, 1995, have a term measured by the longer of 17 years from the date of issue or 20 years from the date of US filing of the earliest non-provisional application in its chain of parentage. Utility Patents and Plant Patents based on applications filed after June 8, 1995, (actual filing date, not priority date), have a term of 20 years from the US filing date of the earliest non-provisional application upon which the patent is based. Utility and Plant Patents issued before June 7, 1978 had a 17-year term, measured from the date of issue, and have all expired. Design Patents are valid for a period of 14 years from the date of issue. A patent may be enforced starting on the date it is issued by the USPTO (its "Issue Date"), and running for the length of its term, unless it expires earlier due to a failure to pay fees or a declaration of invalidity by a court. After the patent expires, the invention is available to all. To determine if a patent is still in force, you will need access to the USPTO's website, and specifically to the patent image database, which requires installation of TIFF-viewing software. See the USPTO website for instructions on viewing patent images. Call up the patent on the USPTO patent database, if you do not have a printed copy. | |
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