What Happens to a Patent When it Expires?

By Lee Hall, J.D.

What Happens to a Patent When it Expires?

By Lee Hall, J.D.

A patent protects intellectual property only for a specific period of time. An expired patent no longer affords the inventor or patent owner any protection. When the patent expires, the concept becomes available for any organization or individual to freely use, redesign, and market without the original patent owner's permission.

Yellow file tab reading "patent"

Some General Rules

Patents empower inventors of novel concepts and designs with exclusive rights over their creations. The grant of a patent is enshrined in the U.S. Constitution, meant to encourage progress by protecting inventors' rights over their processes and inventions for a certain term of years. After the term concludes, the patent expires.

Patents granted on or after the date of June 8, 1995, automatically expire at the end of a 20-year or shorter period:

  • Plant patents, which cover certain hybrid or novel plant life, and utility patents, which cover novel inventions and digital processes, last 20 years.
  • A design patent covers new and creative ways of developing the aesthetic qualities of an industrial object. Design patents traditionally expired after just 14 years. Since May 13, 2015, the span has been lengthened to 15 years.

Now, we'll cover some variations on these general rules.

Fees, Deadlines, and Grace Periods

During the life of a utility patent, the inventor or patent owner must pay several patent maintenance fees to the U.S. Patent and Trademark Office (USPTO). These fees maintain the owner's patent protection beyond four, eight, and 12 years from the grant date. A utility patent owner who fails to remit maintenance fees loses the patent. Design and plant patents require no maintenance fees.

The grace periods for these payments can spare patent owners from an early loss of patent rights. Note that using the grace period does incur an extra charge.

If the owner of a utility patent neglects to pay fees for so long that the patent expires, but the neglect was unintentional (or, in rare cases, could not be avoided), the owner may file a petition to reinstate the patent. Therefore, parties wanting to exploit an invention with a lapsed patent should take into account the possibility that the owner may revive the patent, resulting in litigation.

Patent Term Variance

Normally the USPTO does not allow renewal beyond the above-mentioned period of years. Yet, variances exist outside of the USPTO.

Note, for example, the Food and Drug Administration's Orange Book: Approved Drug Products with Therapeutic Equivalence Evaluations. This listing includes dates that patents expire, and some include terms of exclusivity that the FDA provides, extending the life of a patent.

An Act of Congress can also provide additional terms to an owner, and judges occasionally create patent terms outside of the USPTO records.

An Expired Patent as a Public Good

While patents provide incentives and protections to inventors, a novel idea eventually becomes established. At that point, removing one party's exclusive rights over it enables competition in the marketplace. New and cheaper versions of the concepts can then emerge under new names.

So, how do you find an expired patent? Those looking to adopt ideas from expired patents can search the USPTO website or also use Google Patents to search.

A patent protects hard-won intellectual property from being unfairly exploited. Yet, an expired patent leads to new business opportunities and the potential for the public to benefit. That balance is the essence of U.S. patent law. It rewards the original inspiration and work. It then empowers others to improve upon a concept and broaden its availability, encouraging still more innovation.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.