What Happens to a Patent When it Expires?
If you're an inventor of a useful, novel and nonobvious tool, article of manufacture, business process or even if you've discovered a unique way to make improvements to an existing patent, the life of your patent is quite short compared to other forms of intellectual property, such as trademarks and copyrights. However, during your patent's lifetime, you are granted a very powerful right, by law--far more powerful than the rights granted to other holders of intellectual property.
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The Life of Patents
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The United States Patent & Trademark office is an arm of the Department of Commerce responsible for granting patents. The PTO issues three types of patents: design patents, plant patents and the most commonly-issued patent, utility patents. To conform with the General Agreement on Tariffs and Trade (GATT), certain patents filed after June 8, 1995 were extended from 17 to 20 years. Patents filed before this date, as well as those in force on June 8, 1995 were provided an extended term that can endure 17 years from the date the patent was granted or 20 years from the date the patent application was filed, whichever is the longest. Under current patent law, plant and utility patents have a life of 20 years, while design patents last 14 years. Also, the Orphan Drug Act provides that certain drugs created to treat a disease that affects fewer than 200,000 people have patent protection for seven years.
The Right of Exclusion
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During the time a utility, design or plant is patented, its inventor enjoys what is known as the "right of exclusion." This precludes any other inventor from making, using or selling a utility, design or plant that is the equivalent to the original patent, even if the second inventor created it independently. The right of exclusion gives inventors and their creations extreme leverage in the consumer market, should the patented item be a desirable commodity. A good example of how the right of exclusion can be desirable is when a patented brand-name drug is created by a pharmaceutical company to treat a health disorder.
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After a Patent Expires
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After a patent expires, it falls into public domain, much like a copyright, and the inventor no longer has the right of exclusion. If the patentable item was a lucrative venture, this can result in the demise of the original patented item. For example, until 2002, Roche Holding AG's acne-treating drug Accutane was its second biggest seller. Once the formula for Accutane fell into public domain in 2002 and less expensive generic equivalents introduced, Roche only held 5 percent of the market share. Roche recalled Accutane in June 2009 and will no longer produce it.
Other Ways a Patent Can Expire
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A patent can expire if, during its lifetime, it is deemed invalid by the PTO after a court finds that one patented invention infringes on another that was already in existence, if the invention was never patentable, the patent was obtained through fraudulent means, or the patent was used to commit illegal acts. However, a utility patent is more vulnerable to inadvertent expiration when an inventor fails to pay the required maintenance fees at the 3.5, 7.5 and 11.5-year intervals after the patent is granted.
Reviving Your Patent
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A utility that expires because an inventor fails to pay its maintenance fees can be revived. The PTO allows inventors who forget or fail to pay their maintenance fees a six-month window after each due date, during which time they can pay the fee along with a surcharge.
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