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Intellectual  Property

How Long Does / Can a Patent Last?

by Jacob N. (Jesse) Erlich, Partner
Perkins, Smith & Cohen, LLP
One Beacon Street 30th Floor
Boston, MA 02108
617.854.4000
jacob_erlich@pscboston.com

Effective June 8, 1995, as a consequence of the General Agreement of Tariffs and Trade (GATT) Uruguay Round implementing legislation (PL 103?465) signed by President Clinton on December 8, 1994, the term of a utility patent begins on the date of grant or issuance and ends, if all maintenance fees are paid, 20 years from the filing date of the application for the patent.  If priority of an earlier application(s) is claimed under sections 120, 121 or 365(c) of the patent law, the 20 year period is measured from the date of the earliest of such earlier applications.  The 20 year patent term may be extended for a maximum of five years for delays in the issuance of the patent such as those due to interferences, secrecy orders and/or successful appeals to the Board of Patent Appeals and Interferences or the federal courts and regulatory delays.   All patents that are in force on or that will issue on an application that is filed before June 8, 1995 will automatically have a term that is the greater of the "new" 20 year term provided above or "old" 17 years from grant of the patent.  If the appropriate maintenance fees are not paid, U.S. patents expire at the end of either 4, 8 or 12 years from the issuance date.

Effective January 1, 1996, under Article 28 of the Agreement on TRIPs, a product patent provides its owner with the right, within the United States, its territories and its possessions, to prevent others from making, using, offering for sale, selling, or importing the protected invention.  Further, a process patent confers on its owner the right to prevent others from using the process, and from using, offering for sale, selling, or importing the product obtained directly from the patented process.

The information is provided for informational purposes only, and should not be construed as legal advice.

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