Most patentable inventions are registered as utility patents (as opposed to design patents). These patents last up to twenty years from the date the patent was filed, assuming the patent owner file the necessary extension and pays the required maintenance fees. (With few exceptions, a person who puts in the time, energy, and expense is motivated to make their patent rights last as long as possible. It’s unlikely that they will miss a filing deadline.)
Patents have the shortest duration of an intellectual property in the U.S., by a substantial amount:
- Patent: 20 years from the filing date
- Copyright: 120 years from creation or 95 years from first publication (for company created copyrights)
- Trademark: Potentially forever if continuously used in commerce, and the owner submits the required filings and maintenance fees for registered trademarks
- Trade Secrets: Forever, as long as they are kept secret
When a person has a patent, they have the ability to exclude others from making, using, selling, or importing the invention. This monopoly provides incentive to for creators to pursue new innovations.
What Happens When a Patent Expires
When a patent expires, it enters the public domain. At that time, the patent owner no longer has the right to exclude anyone from using that invention. Anyone can use it, for any reason, without needing the former patent owner’s permission. They can even compete in the marketplace with the former patent owner.
We see this situation frequently in the pharmaceutical industry. Drug manufacturers often patent their new drugs, creating a monopoly where only one company can create and sell it (assuming it gets approved by the FDA). Other companies can’t create generic versions of the drug until the patent expires (unless they get a license from the patent holder).
Coincidentally, one of the drugs people have inquired about its patent status recently is Viagra. Pfizer has two patents on this product, the second of which won’t expire until 2020. (There are other ED medications whose patents will expire sooner.)
Option to Release Patents Early
Of course, the patent owner always has the option to release their patent to the public domain before it expires or to allow others to use their patent as part of the open source movement.
Elon Musk made such an announcement regarding the Tesla patents in 2014: “Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.” This announcement was made “in the spirit of the open source movement, for the advancement of electric vehicle technology.” By sharing the Tesla patents, Musk hopes that it will spur faster advances in electric car technology.
Every legal situation is different and needs to be evaluated on its merits. If you need help with your patent needs, please send us a message. We have lawyers licensed in Arizona, Connecticut, and New York, and we can handle federal intellectual property matters in any U.S. state and assist with international matters. For even more information and resources, be sure to connect with us on Facebook.
This post was written and edited by social media attorney Ruth Carter.