Expired patents USPTO occur 20 years from the date that the patents were filed. With this in mind, if you know of any inventions that are older than 20 years, they may be free to copy without any type of patent violation. To ensure a patent is free to be copied, you will want to speak with an attorney who specializes in patents.

Using Expired Patents Instead of Re-Inventing

There is also another way in which a patent can become free for copying, and this is when a patent has been abandoned. An abandoned patent occurs when the inventor doesn't finish the patent process or fails to pay any required fees. With an abandoned patent, you get to take advantage of someone else's hard work. More so, you get the opportunity to expand and improve on the work of others, which is key to fostering innovation.

As stated before, it is always pertinent to check with a qualified attorney to determine if a patent has been abandoned or expired. In the event the inventor filed a related patent to the one a person is looking at, this means some type of infringement may take place if a person doesn't follow certain procedures.

Checking to See if a Patent Is Expired

There are many people who have an idea for a product or service that is based on a product or service that has been patented at one point in time. Because of this, a person must determine if the product or service is still protected by a patent so as not to carry out any type of infringement.

A start-up will do well to limit its liability in regard to patent infringement; this involves speaking with an attorney who is experienced in patents. It is also ideal for a start-up to acquire a license from the patent holder to modify a product or service because this eliminates the need for having to pay licensing fees.

Understanding the life cycle of a patent is crucial in being able to determine if a patent has expired. The first part of the patent life cycle includes filing the patent and receiving an application number. 18 months after a patent's application has been filed, it will then be published and it will receive a publication number.

Approximately two to three years after a patent has received a publication number, the USPTO will step in to look at the application. If it is determined that the claimed invention does not replicate any other type of known patent, then it will receive its actual patent number.

During the period of time in which a patent is being issued (several years), a start-up does not own any intellectual property rights for the services or products it is trying to patent. Still yet, because of 35 USC 154, an entity (the start-up) holding a patent does retain the right to sue for reasonable royalties if certain conditions are met.

Understanding Patent Lifespans

Most times, a patent holder will possess intellectual property rights to a product or service 20 years from the date a patent was filed. This means if a start-up submitted a patent application on April 1, 2020, patent protection will be in place up until April 1, 2040. After April 1, 2040, the patent will expire. There are instances, however, in which patents can expire before the full 20 years has passed. And as mentioned before, it is also possible for a patent to become abandoned during this 20-year period of time.

What Is an Abandoned Patent?

There are several reasons as to why a patent may be abandoned. It is during the process of a patent being granted that many office actions have to take place, including lots of communication between the USPTO and a patent lawyer or start-up. If an office action is ignored or not responded to, then the application of the patent becomes abandoned.

Another way in which a patent can become abandoned is if the "issue fee" is not paid. For large companies, an "issue fee" of $1,770 must be paid, and for small entities filing a patent, an "issue fee" of $885 has to be paid. If not paid, the USPTO will consider the patent abandoned.

Other reasons a patent may become abandoned include:

  • Failing to pay patent maintenance fees
  • Entity filing the patent chooses not to move forward with the application process
  • Patent fees exceed profitability potential, causing patent filer to abandon the application process

If you need help with expired patents USPTO, you can post your legal need on UpCounsel's marketplace to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.