What Happens When a Patent Expires?

Rich Goldstein

Founder & Principal Patent Attorney

By law, a patent will protect your intellectual property rights for only so long. After a certain number of years, your patent protection will expire. Most of the time, you won’t be able to extend your patent’s term and it will become part of the public domain. 

Because this is an inevitable point in the life of all patents, you will want to take into consideration what happens when a patent expires and plan accordingly. 

Why Does a Patent Expire?

A patent is a type of intellectual property right that gives its owner the legal right to exclude others from making, using, or selling an invention for a specific number of years. Patents are issued for inventions in an effort to encourage and foster ingenuity.

Patent protection serves as a reward for investing in the research and development of ideas that are beneficial for society. 

With a patent, its holder can market the invention and earn money through royalties or licensing agreements. This allows patent holders to recoup the investment they made in developing the invention. 

On the other hand, allowing patents to last for too long would constrain others who want to improve on the underlying invention.  It would also place constraints on free trade.  In an effort to balance these competing concerns, patent law requires that a patent expires and becomes part of the public domain at some point. In fact, it is part of the U.S. Constitution that the protection provided by a patent is “for a limited time”.

When Does a Patent Expire?

How long does a patent last? Your patent’s term will depend on the type of patent and the circumstances involved. 

Typical Patent Terms

Utility patents will expire 20 years from the date of filing the nonprovisional patent application for the invention. However, this term of 20 years can be subject to adjustments and extensions issued by the United States Patent and Trademark Office. 

A design patent will expire 15 years from the date of issuance of the patent application for the design invention. Unlike utility patents, this 15-year period is generally not subject to adjustments and extensions issued by the Patent and Trademark Office. 

Maintenance Fees

A utility patent could also expire before its term of 20 years if you fail to pay the patent’s maintenance fees. If you have a utility patent, you are required to pay maintenance fees in certain increments during the lifecycle of your patent. If these maintenance fees are not paid within their proper time periods, the patent will expire early. 

Good news, though, you can still generally reinstate the patent for the remainder of its term, so long as you pay additional fees to reinstate it within a specific period of time. Other good news – design patents do not require maintenance fees.

Patent Term Adjustments and Extensions

Another way a patent’s expiration date may be extended is through Patent Terms Adjustments and Patent Term Extensions. These are extensions to the time period in which a patent is valid that are applied by the Patent and Trademark Office. 

Calculating business risks when a patent expires

Patent Term Adjustments are automatically applied by the Patent Office at the time your patent is approved. These adjust for any delays the Patent Office may have caused between the time you submitted your application and the time it approved your patent.

Patent Term Extensions extend the term of a patent that claims a product which requires regulatory approval prior to being sold or requires a specific method of using or manufacturing the product. 

These are typically applied to inventions related to pharmaceuticals, food additives, and medical devices that are regulated by the Food and Drug Administration. The two government agencies will work together to apply a reasonable patent term extension. 

What Happens When a Patent Expires?

When your patent expires, the following will happen:

  • Your intellectual property will be part of the public domain;
  • Others will be free to use and market your invention; 
  • You may stop receiving patent-related royalties; and
  • Patent-related licensing agreements will no longer be enforceable. 

Your Invention May Be Marketed by Others

When your patent expires, others will be able to use the invention your patent is based on. You will, however, be free to continue selling and marketing your invention, you just may not be the only one in the market anymore. 

Your Royalty Payments Will Stop and Licensing Agreements Will End

When your patent expires, expect that royalty payments you may be receiving from those utilizing your underlying invention will stop. Any licensing agreement you have in place with others should automatically extinguish. This is the case even if there is no specific expiration date or term contained in your licensing agreement. This is generally the case because royalty agreements that extend beyond the life of the patent may be considered “patent misuse” or some other form of an antitrust violation.

Can You Renew Your Patent?

Unfortunately, once a patent expires it cannot be renewed. There are typically no exceptions to this rule. However, as explained above, if your patent expired because of a failure to pay maintenance fees, you would be able to renew (reinstate) your patent until its original term expires. 

What Should an Expired Patent Holder Consider?

If you are an expired patent holder, there are still some options you will want to consider once your patent expires. 

Protect Your Trade Secrets

One thing to consider is seeking protection of any trade secrets related to your expired patent.  Trade secrets are a separate type of intellectual property and are still protectable under the law. 

Person filling up a patent application

As explained by the United States Patent Office, a trade secret:

  • is information that has either actual or potential independent economic value by virtue of not being generally known,
  • has value to others who cannot legitimately obtain the information, and
  • is subject to reasonable efforts to maintain its secrecy.

Trade secrets are useful when it is possible to keep something a secret.  Generally, when you file your patent application, you are required to “tell all”, so that the public has all of the information about practicing your invention once your patent enters the public domain.  But sometimes optimal manufacturing processes and other details develop after you get the patent. Sometimes they are worthy of a trade secret. As a result, if your patent is expiring, it is helpful to consult a patent attorney to see if you can still protect any elements of your invention under trade secret law

Consider Economic Impacts on Your Business

Another important consideration is to think through the effects that your patent expiration will have on your business. 

If you are producing a product based on your invention, you may want to consider ramping down production of the product as the patent’s expiration date approaches. Because once you no longer hold the patent for the product, other companies may enter the market and drive down the demand for your specific product. 

You may also want to consider how a decrease in the demand for your product will impact your business economically. You will want to look into whether it makes sense to decrease the price of your product so that you can compete with other similar products that will enter the market. If this is unfeasible, you may want to invest your resources into other products or areas of your business. 

Increase Marketing Efforts

Another consideration to make as your patent nears expiration is to increase your marketing efforts for the invention. Brand awareness may not have been as important when your product was the only one on the market, but now that you may face increased competition, it could be vital. At this point, you should make sure your brand is strongly protected with trademarks.

How Can You Find Out if a Patent Has Expired?

If you want to determine if a patent has expired, you will want to conduct a search for the patent.  Third-party websites have great databases that allow you to conduct these searches easily. 

The patent search should let you know when the patent was filed and any adjustments that were applied. Make sure the patent is not tied to the term of another patent, in which case the patent will expire sooner than the filing date. 

You can also use the Pair Database kept up by the Patent Office to determine if a patent’s maintenance fees have been paid. If you have the patent number and serial number, you can also check out the USPTO Maintenance Fee Storefront to check the fee status of any patent.

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