What Do I Do if My Patent Lapses?

By Holly Cameron

Patents provide inventors with exclusive rights to make, use or sell their inventions or processes. Patent rights originated in Article 1, Section 8 of the U.S. Constitution and aim to promote scientific progress by granting rights to inventors for a period of time. The Patent and Trademark Office, or USPTO, administers patents in the United States. Most patents continue for up to 20 years but will lapse if regular maintenance payments are not paid. If your patent lapses, you have a limited period of time to petition for its revival.

Patent Definitions

The USPTO considers applications for three types of patents: A utility patent covers new and useful processes, manufactured articles or machines; it may include improvements to these inventions. A plant patent covers new and distinct plant varieties. A design patent covers only the outward appearance of an invention and not its functional or structural elements. All patent applications must include full and detailed descriptions, including drawings, where relevant, of the invention or process seeking protection.

Expiry of Time

For applications filed on or after June 8, 1995, utility and plant patents last for 20 years; they automatically expire at the end of that period. Design patents last for 14 years from the date of issue. Once your patent expires, your invention or process is no longer protected. This means that any organization or individual can sell or use it freely without your permission.

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Lapse Due to Non-payment of Maintenance Fees

The inventor or patent owner must pay maintenance fees to the USPTO to avoid having a utility or plant patent lapse. Fees are due after three years, seven years and 11 years from the date when the patent was first granted. The USPTO gives patent owners a grace period of six months following the date when the fees are due to make late payment, provided they pay a surcharge. The USPTO publishes its fees in October of each year. You do not have to pay maintenance fees for design patents.

Reviving a Patent

If your patent has expired due to non-payment of maintenance fees, you can apply to revive it, provided you apply within two years from the end of the six-month grace period. Your petition for revival must be on the grounds that the non-payment was either unintentional or unavoidable. You must explain in the petition that you took reasonable steps to ensure that the payment was made on time and that you filed the petition promptly once you realized that it wasn't paid.

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How to Fill Out a Provisional Patent Application


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What Does Expired for Non-Payment Mean for Patents?

A patent is a right conferred by the government to intellectual property that gives the patent-holder sole authorization to sell, make or distribute the item. Patents in the United States can only be granted by the U.S. Patent and Trademark Office. Inventors and discoverers of new, useful, non-obvious inventions can patent their items, granting them sole rights to profit from and sell the item for a set period of time. The patent office also offers patents for plants and for designs. To retain a patent, you must pay patent maintenance fees to the patent and trademark office. If you do not pay these fees, your patent will expire.

How to Challenge a Patent

The U.S. Patent and Trademark Office (USPTO) grants patents to allow inventors to enjoy legal monopolies on the beneficial uses of their inventions. Most patents are valid for 20 yeas after their initial filing date. If you believe that a patent was inappropriately or mistakenly granted, you may ask the USPTO to reexamine it. If the USPTO upholds the patent, you may appeal the decision to a U.S. federal court.

How to Renew a Patent

Patents granted by the U.S. Patent and Trademark Office are designed to encourage discovery and invention by granting exclusive rights to reproduce or sell an invention or design for a period of time. You must pay maintenance fees to the U.S. Patent and Trademark Office to maintain your patent for the full period.

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