A patent is only in force during its term and in its jurisdiction. When the patent term runs out, or if it is abandoned or invalidated in a particular jurisdiction, unless there is a continuation in force, the matter in the patent enters the public domain. There are three main types of patents that are granted by most patent offices around the world. They are :
Utility Patents: Utility patents are the most common type of patents that cover new and useful processes, machines, articles of manufacture, compositions of matter, and improvements thereof. for the utility patent to be granted an invention should be useful, novel and non-obvious. These patents are typically granted for a 20 years period from the filing date.
Design Patents: These patents cover new, original and ornamental designs for articles of manufacture. it is important to note that unlike utility patents it does not cover the functional or structural aspects of the invention but rather the way it looks. Design patents are granted for 15 years period from the grant date.
Plant Patents: Plant patents cover new and distinct varieties of plants that have been reproduced asexually through cuttings or grafting. For the plant that is new, distinct, uniform and stable the plant patent is granted for a period of 20 years from the filing date.
Some countries may have additional types of patents such as software patents or business method patents but they are not recognized globally and may be subject to rules and regulations based on the jurisdictions.
See also What determines a patent’s in-force duration?
For utility patents issued in the USA
- If the application from which the patent issued was filed on or after June 8, 1995, the patent term begins on the patent issue date and ends 20 years after the effective filing date of the application. Not the day before(though probably few would want to go to court about conduct occurring on 11:59 PM that last day).
- If the application is a continuation, continuation-in-part or division of a prior application, then its effective filing date is the filing date of the earliest filed non-provisional application in the chain of applications.
- Remember, if the earliest application filed was a provisional application, that filing date does not count as the earliest date. This is also true for non-US applications, so look out for Australian or other provisional filings which serve as the priority documents when you do your patent term calculations.
- If the application from which the patent issued was filed before June 8, 1995, the term of the patent is the longer of: (a) 17 years from issue date, or (b) 20 years from effective filing date.
- A tricky case: If the application is the U.S. national stage of an international application filed in the PCT system, then its effective filing date is the international filing date despite the fact that the PCT application might have claimed priority to an earlier application. How can you identify such a patent? The face of the patent and/or the first paragraph of the specification should indicate that the application was filed under 35 USC 371.
Check out this cool website http://www.ssjr.com/tools/toolshell.aspx?tl=1 which will calculate a US patent term for you (but the catch is you have to fill in the correct effective filing date, bearing in mind the facts above).
For some examples for the US, see the table in http://en.wikipedia.org/wiki/Term_of_patent_in_the_United_States and see whether you get the same answers.
For patents issued in Europe
Generally, the term of a patent, which must be registered in an EU country in which it is to be enforced, is 20 years from the earliest effective priority date as per the TRIPS agreement. There’s a special case where an application filed under the PCT enters the EPO, but remember not every patent application filed in the EPO is filed under the PCT.
However, when an application filed under the PCT is filed in the EPO as it enters its regional phase, the term is 20 years from the international filing date.
For patents issued in Canada
For patent applications filed before October 1, 1989, the term of the patent is normally 17 years from the date of issue. However, where the term for the patent had not expired before July 12, 2001, then the term is 17 years from the issued date or 20 years from the filing date, whichever term expires later.
For patent applications filed on or after October 1, 1989, the term of the patent is 20 years from the date of filing of the application. See the Canadian Intellectual Property Office website.
For patents issued in other countries
Most countries that have had different rules in the past are now harmonizing on 20 years from the earliest effective priority date, as per the TRIPS agreement. Some countries have special extensions, e.g. in Brazil there is a minimum term guaranteed, and in the US there can be patent term adjustments associated with delays while the patent application was being examined.
Different Flavors of Patents
Some jurisdictions grant patents after little or no examination. Substantive examination of whether the patent claims are actually valid may occur during a litigation.
Utility Model Patents
(not to be confused with “Utility Patents”, i.e. what most people think of as “patents”). These have a term of ten years from the filing date. Generally EU countries offer this option, as do Bulgaria and China. In Japan, Utility Model Patents have a term of six years from the filing date. In the Lens, this type is included under “Limited patent” type
Granted in Indonesia, these patents have a term of ten years and so are similar to Utility Model Patents. In the Lens, this type is considered as “Limited patent” type.
Australian petty patents, which were abolished in 2001, have a term lasting for six years from the filing date. Thailand still grants petty patents, also valid six years from the filing date. In the Lens this type is included under “Limited patent” type
These patents, in Australia, replace the petty patent. Their term lasts for eight years from the filing date. In the Lens, this type is considered as “Limited patent” type.
14 years from the date of issuance in the USA. The rules vary in some other countries.
This is not an exhaustive list of the different types of patent applications.
Different Patent Document Types Used In The Lens
We have the following document types used in the Lens:
Abstract: Abstract is a brief summary of patent application that provide clear description of the invention. Patent abstract is usually found at the beginning of the patent document written in non-technical language and provides a brief overview of the invention’s main feature, purposes and benefits.
Amended Patent: An amended patent is a type of patent document that reflect changes made to a previously issued patent. The amended patent document contains the original patent text with clear indication of the changes made. The amended patent replaces the original patent after it is issued and any legal rights and protections applies only to the amended patent. Amendments can be made to correct errors or omission in the original patent, to address prior art issues or to add new claims or specifications. An amended patent can be filed by the patent holder or can be required by the patent office to a challenge or objection to the original patent.
Design Right: It is a type of intellectual property right that provides legal rights to the appearance and ornamental design of a product rather than a functional features. Design rights are protected by the design patents in some jurisdictions while it may be protected by other forms of intellectual property such as registered design or design copyrights in some other jurisdictions.
Granted Patent: A patent that has been approved and issued by a government patent office. Before a patent is granted it need to undergo examination and meet the requirement of patentability. The granted patents are protected under law and provides the inventor or assignee with exclusive rights to the invention for certain period of time.
Limited Patent: Based on the various factors, certain patents may be subject to limitations or restrictions on its scope of protection.
Patent Application: A formal request made to a patent office to grant a patent for an invention including the description and claims of the invention along with the scope of the invention. The patent application is a subject to examination to determine whether the invention meets the patentability requirement by the patent office.
Search report: It is a report prepared by the patent examiner during the examination of a patent application. The report includes a list of prior art references relevant to the invention that helps the examiner to determine if the invention is novel and non-obvious.
Statutory Invention Registration: It is a document that is filed with USPTO to establish a prior art reference that could be used to prevent someone else from obtaining a patent for the same invention. It provided a way for the investors to ensure their inventions remained in public domain rather than being patented by someone else. Statutory Invention Registration is no longer available as an option under US patent law since March 16, 2013.
Supplementary protection certificate: It is a document that provide additional patent protection for pharmaceutical and plant products in Europe. It encourages pharmaceutical company to invest in research and development of new drugs though it takes time to obtain regulatory approval by extending the term of protection for a patent to compensate the time it takes to obtain the regulatory approval for the product.
Unknown: Refers to a patent document that is not known or recognized by the requester.
Ambiguous: Refers to a patent document that is unclear or has more than one possible interpretation.
How can you tell what kind of patent you’re dealing with?
The exact document type and description depends on the jurisdiction, kind code and publication date. To know exactly what sort of patent document type you are dealing with, you can check the DOCDB Kind codes concordance. These are updated by the EPO regularly and are available here: EPO Data Coverage, codes and statistics – Updated regularly