Term of patent

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 fees 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.

International harmonization

Significant international harmonization of patent term across national laws was provided in the 1990s by the implementation of the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (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."^[1]

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 models are an example of such rights. Their term is usually 6 or 10 years.

United States

Main article: Term of patent in the 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 patents (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:

• 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 Convention 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.^[2] 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.^[3] 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)^{[clarification needed]} against pharmaceuticals manufactured in Spain (and cheaply available^{[citation needed]}).^{[citation needed]} Prior to its Treaty of Accession, Spain did not offer patent protection for pharmaceutical products.^{[citation needed]}

References

1. ^ Standards concerning the availability, scope and use of Intellectual Property Rights, http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm, retrieved 2009-04-07 
2. ^ Article 63(1) EPC
3. ^ Article 63(2)(b) EPC

Further reading

• United States
  • 35 U.S.C. § 154 - Contents and term of patent; provisional rights
  • 2701 Patent Term - 2700 Patent Terms and Extensions in Manual of Patent Examining Procedure (MPEP), USPTO

See also

• Maintenance fee
• Paris Convention for the Protection of Industrial Property, provides what is called the "priority year"
• Provisional patent application
• Submarine patent
• Supplementary protection certificate (SPC), provides a limited time extension to the protection conferred by certain patents in the European Union