Prepare for The Day Your Patent Expires. Thompson Patent Law

Prepare for The Day Your Patent Expires 

Patents for inventions expire after 20 years. Patents for designs based on an existing object expire after 14 years. In almost all cases, patents can’t be extended. Patents can also expire earlier than anticipated if you haven’t paid your maintenance fees. All patents expire, but what happens when they do?

Others can use your design or idea…

You’re free to keep manufacturing your patented object, but you can’t keep others from creating imitations and thus driving down the demand (and the price). This doesn’t mean that you lose rights to everything. For example, they can’t use the product name or your trademark.

…up to a point.


You have to give up to the patent office all major components of your patent, but you can keep fine details to yourself.

These are known as “trade secrets.” Trade secrets are only protected so long as they’re still secrets, and they don’t hide something toxic or otherwise dangerous. For example, there’s many types of fried chicken, but KFC’s 11 herbs-and-spices recipe is a trade secret.

You may stop receiving royalties on your patent.

Once a patent expires, licensees no longer owe royalties to the patent holder. Even if your license agreement doesn’t have an explicit expiration date as part of the agreement, the patent expiration is the actual expiration date.

For example, if your licensees have a written royalty agreement to pay you 10% royalties for using your 19-year old patent, but there’s no expiration date in the written agreement, the expiration date is the date of your patent expiration, which is the next year.

You can patent an improvement on your original object or design.

If you want to keep your momentum going, you can always try for a second-generation patent.

A second-generation patent is a significant or marked improvement on the original patent such that it sets it apart from the previous one. You’ll still have to go through the same patent process, and it’s still no guarantee that the patent office will grant the second-generation patent.

Pharmaceutical companies often do this; in fact, they may start improving on the original patented formula shortly after receiving the original patent so they may patent and market the new and improved one.

How do you prepare for patent expiration? 

A patent expiration can be an overnight game changer, so it’s best to prepare sooner rather than later. An experienced patent attorney can help you prepare for patent expiration and/or pursue a second generation patent.

Even when your patent expires, a patent attorney can advise you on how to protect the copyright and trademark you have on your original product or design

Robert Gerhart Technical Advisor, Patent Agent at Fish & Richardson P.C.

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