Can You Renew A Patent?

November 1, 2022
- Patent Portfolio Management
- State of the Art

The U.S. Patent and Trademark Office (USPTO) grant a patent when it wants to restrict someone from creating, using, or selling an invention in the country for a set amount of time. Utility patents are valid for 20 years, starting on the day the USPTO issues the patent, from the US filing date of the earliest non-provisional application upon which they are based. A patent cannot be extended once the time frame has passed. After a patent expires, the innovation becomes public property. This blog focuses on answering the question that is asked about patents the most. Can you renew a patent?

How Are Patents Granted?

A patent application must be submitted to an issuing authority, such as the USPTO, in order for a patent to be granted. An examiner is given the application and is tasked with reviewing it, doing a search, and determining if the invention in the application satisfies the criteria for patentability.

In the United States, this entails assessing the invention’s novelty, non-obviousness, and utility. The applicant is typically given the chance to comment if the examiner decides the invention is not patentable. The applicant and the examiner keep in touch up until the examiner makes a decision.

The applicant typically has the right to challenge the examiner’s judgment before an internal board of the Patent Office and ultimately in court if they are unhappy with the outcome.

Patent Maintenance Fee

A patentee can pay maintenance costs and any applicable surcharges on their own behalf or on behalf of any other person or business. With your maintenance fee payment, you must include both the patent number and the related application number and in case of a reissue application, a reissue patent number is included.

Before attempting to make an online payment, ensure your entity (small entity or micro entity) status has been updated if there has been one. Send your entity status request with your maintenance fee payment if you pay by fax or mail.

On the USPTO Fee Schedule (https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule), you may view the current fee amounts. The costs owed are automatically determined when you make an online payment based on the entity status that is currently recorded for your patent. Information regarding checking the costs associated with your patent is available at https://fees.uspto.gov/MaintenanceFees.

At 3 to 3.5 years, 7 to 7.5 years, and 11 to 11.5 years following the date of issuance, you may pay without a premium. You cannot pay in advance. During the “grace periods” at 3.5 to 4 years, 7.5 to 8 years, and 11.5 to 12 years from the date of issue, you may also pay with a surcharge.

A maintenance fee and any applicable surcharge must be paid in full on the day that they are filed, in the amount that is due. A maintenance fee or surcharge on a patent will not be applied if less than the appropriate amount is paid. The maintenance fee and any necessary tax may be paid on the following subsequent day that is not a Saturday, Sunday, or federal holiday if the last day for paying a maintenance fee without surcharge or a maintenance fee with surcharge falls on one of those days.

Are Patents Renewable?

The terms of U.S. patents are fixed, and they often cannot be extended. A U.S. utility patent has a 20-year term starting from the earliest non-provisional filing date in the country. The USPTO may extend the deadline if the Patent Office takes too long to examine the application or if the FDA’s regulatory process is delayed in some way. On the other hand, the period of time may also be decreased if the petitioner makes certain exclusions during prosecution. After being granted, a U.S. design patent is valid for 15 years. In the US, a plant patent is good for 20 years after being granted.

A patent cannot be extended past the period for which it was issued without a change in the law. In order to extend protection, a better variation or improvement of the original protected invention must be made and patented.. However, the original innovation will still be free for anyone to copy and use after the original patent expires if only the improvement is protected by a new patent.

Reinstate An Expired Patent

If a maintenance fee has not been paid on time and the patent owner wishes to have the patent rights reinstated, a petition and the relevant expenses are required.

Any request to accept an unintentionally postponed maintenance fee payment must provide the following:

The required upkeep charge described in 1.20(e) through (g)
Petition fee in accordance with 1.17 (m)
a statement that the delay in paying the maintenance charge was inadvertent
To be executed in accordance with 1.33 (b).

Detailed information regarding the maintenance of patents is available at https://www.uspto.gov/patents/maintain.

Exceptions To The Rule Of 20 Years Patent Term

Although a patent is granted for a period of 20 years from the filing date, there are a few scenarios when these periods can be extended:

The priority year:
The priority date is the day on which you submit your patent application. The priority year is the 12 months that come after this.
You can delay the expiration of your patent by one year by making good use of that priority year. As a result, your patent expires after 21 years rather than 20 years (beginning from the first filing date).
Medicinal Products:
Based on the Supplementary Protection Certificate (SPC), which can be used to prolong the life of a patent by up to 5 years, a longer period of protection may be granted for the protection of medicines.
Research on a pharmaceutical product’s safety will be done for a number of years prior to the product’s release on the market. If a drug is both effective and safe, the European Medicines Agency will only provide marketing authorization for the active ingredient.
An SPC can be used to add five more years to the patent’s term of protection in order to make up for this time. This extends the amount of time the patent holder has to recoup his investment.
Patent Term Adjustment:
A USPTO tool known as Patent Term Adjustment (PTA) or Extension is designed to compensate for specified sorts of delays that may occur while the application is still pending with the office.

The primary three types of delays are considered by a PTA. The USPTO’s first kind of delay occurs when it does not respond within the time limitations specified in the patent legislation. The second delay happens when the patent is issued slowly. According to USPTO regulations, a patent is issued within three years of the application’s filing date, meaning that the prosecution must be finished within that time frame. The third kind of delay is brought on by successful appellate review, secrecy orders, or interference proceedings.

Conclusion

A typical phrase used to describe keeping a given patent active in other nations is “patent annuity.” Remember that a patent annuity can also refer to an annual fee to maintain an active patent application. In contrast to the US, some foreign patent offices will tax you annually to maintain the status of your patent application.

In conclusion, patents whose terms have expired cannot be renewed. Utility patents in the United States are technically maintained rather than renewed. In contrast to “renewal,” which suggests a period of time that never ends, “maintenance” implies that the patent term has an expiration date. Neither in the US nor anywhere else can patents last indefinitely.

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