Term of patent
Encyclopedia
The term of a patent
is the maximum period during which it can be maintained into force. It is usually expressed in number of years either starting from the filing date of the patent application
or from the date of grant of the patent. In most patent laws, renewal annuities or maintenance fee
s have to be regularly paid in order to keep the patent in force. Otherwise the patent lapses before its term.
The term of a patent or specific "claims
" in a patent may also be curtailed by judgment of a court, as where a claim or patent is held "invalid" under the relevant law, and thus no longer enforceable.
's Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPs Agreement). Article 33 of the TRIPs Agreement provides that the
Consequently, in most patent laws nowadays, the term of patent is 20 years from the filing date of the application. This however does not forbid the states party to the WTO from providing, in their national law, other type of patent-like rights with shorter terms. Utility model
s are an example of such rights. Their term is usually 6 or 10 years.
Other types of patents may have varying terms. For example, in the U.S., design patent
s (based on a decorative, non-functional design) typically have a 14-year term.
If the United States Patent and Trademark Office
(USPTO) delays the issuance of a patent, it is possible to receive extensions. This may result in patents being issued for periods longer than 20 years. The reasons for extensions include:
It is possible to receive time extensions equal to the amount of delay.
requires all jurisdictions to give a European patent a term of 20 years from the actual date of filing an application for a European patent or the actual date of filing an international application under the PCT designating the EPO. The actual date of filing can be up to a year after the earliest priority date
. The term of a granted European patent may be extended under national law if national law provides term extension to compensate for pre-marketing regulatory approval. For EEA
member states this is by means of a supplementary protection certificate
.
Protection of patents issued in European Union countries were only enforced for three years (until 1995) against pharmaceuticals manufactured in Spain (and cheaply available). Prior to its Treaty of Accession, Spain did not offer patent protection for pharmaceutical products.
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
is the maximum period during which it can be maintained into force. It is usually expressed in number of years either starting from the filing date of the patent application
Patent application
A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
or from the date of grant of the patent. In most patent laws, renewal annuities or maintenance fee
Maintenance fee (patent)
Maintenance fees or renewal fees are fees that are paid to maintain a granted patent in force. Some patent laws require the payment of maintenance fees for pending patent applications. Not all patent laws require the payment of maintenance fees and different laws provide different regulations...
s have to be regularly paid in order to keep the patent in force. Otherwise the patent lapses before its term.
The term of a patent or specific "claims
Claim (patent)
Patent claims are the part of a patent or patent application that defines the scope of protection granted by the patent. The claims define, in technical terms, the extent of the protection conferred by a patent, or the protection sought in a patent application...
" in a patent may also be curtailed by judgment of a court, as where a claim or patent is held "invalid" under the relevant law, and thus no longer enforceable.
International harmonization
Significant international harmonization of patent term across national laws was provided in the 1990s by the implementation of the WTOWorld Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
's Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPs Agreement). Article 33 of the TRIPs Agreement provides that the
- "The term of protection available [for patents] shall not end before the expiration of a period of twenty years counted from the filing date."
Consequently, in most patent laws nowadays, the term of patent is 20 years from the filing date of the application. This however does not forbid the states party to the WTO from providing, in their national law, other type of patent-like rights with shorter terms. Utility model
Utility model
A utility model is an intellectual property right to protect inventions. This right is available in a number of national statutes, as described below...
s are an example of such rights. Their term is usually 6 or 10 years.
United States
In the United States, under current patent law, for patents filed on or after June 8, 1995, the term of the patent is 20 years from the earliest claimed filing date. For patents filed prior to June 8, 1995, the term of patent is either 20 years from the earliest claimed filing date or 17 years from the issue date, whichever is longer. Extensions may also be had for various administrative delays. (The exact date of termination may be zealously litigated, especially where daily profits from a patent amount to millions of dollars, e.g., pharmaceuticals.)Other types of patents may have varying terms. For example, in the U.S., design patent
Design patent
In the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design...
s (based on a decorative, non-functional design) typically have a 14-year term.
If the United States Patent and Trademark Office
United States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
(USPTO) delays the issuance of a patent, it is possible to receive extensions. This may result in patents being issued for periods longer than 20 years. The reasons for extensions include:
- Delayed response to an application request for patent.
- Exceeding 3 years to consider a patent application.
- Delays due to a secrecy order or appeal.
It is possible to receive time extensions equal to the amount of delay.
Europe
The European Patent ConventionEuropean Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
requires all jurisdictions to give a European patent a term of 20 years from the actual date of filing an application for a European patent or the actual date of filing an international application under the PCT designating the EPO. The actual date of filing can be up to a year after the earliest priority date
Priority right
In patent, industrial design rights and trademark laws, a priority right or right of priority is a time-limited right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively...
. The term of a granted European patent may be extended under national law if national law provides term extension to compensate for pre-marketing regulatory approval. For EEA
European Economic Area
The European Economic Area was established on 1 January 1994 following an agreement between the member states of the European Free Trade Association and the European Community, later the European Union . Specifically, it allows Iceland, Liechtenstein and Norway to participate in the EU's Internal...
member states this is by means of a supplementary protection certificate
Supplementary protection certificate
In European Union member countries, a supplementary protection certificate is a sui generis, extension of a patent under a specific, different, set of right. This type of right is available for medicinal products, such as drugs, and plant protection products, such as insecticides, and herbicides...
.
Protection of patents issued in European Union countries were only enforced for three years (until 1995) against pharmaceuticals manufactured in Spain (and cheaply available). Prior to its Treaty of Accession, Spain did not offer patent protection for pharmaceutical products.
Further reading
- United States
- - Contents and term of patent; provisional rights
- 2701 Patent Term - 2700 Patent Terms and Extensions in Manual of Patent Examining ProcedureManual of Patent Examining ProcedureThe Manual of Patent Examining Procedure is published by the United States Patent and Trademark Office for use by patent attorneys and agents and patent examiners. It describes all of the laws and regulations that must be followed in the examination of U.S. patent applications, and articulates...
(MPEP), USPTO
See also
- Maintenance feeMaintenance fee (patent)Maintenance fees or renewal fees are fees that are paid to maintain a granted patent in force. Some patent laws require the payment of maintenance fees for pending patent applications. Not all patent laws require the payment of maintenance fees and different laws provide different regulations...
- Paris Convention for the Protection of Industrial PropertyParis Convention for the Protection of Industrial PropertyThe Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property...
, provides what is called the "priority year" - Provisional patent application
- Submarine patentSubmarine patentA submarine patent is a patent whose issuance and publication are intentionally delayed by the applicant for a long time, such as several years. This strategy requires a patent system where patent applications are not published. In the United States, patent applications filed before November 2000...
- Supplementary protection certificateSupplementary protection certificateIn European Union member countries, a supplementary protection certificate is a sui generis, extension of a patent under a specific, different, set of right. This type of right is available for medicinal products, such as drugs, and plant protection products, such as insecticides, and herbicides...
(SPC), provides a limited time extension to the protection conferred by certain patents in the European Union