How long does a patent last?

20 years is the standard patent term in Australia, the US and most other countries. During this time, the patent holder has the right to stop others making, using, selling and importing (etc.) versions of the invention. 

Whilst 20 years is the standard patent term:

• often the effective term of protection is closer to 21 years;
• various extensions of term are available;
• Australian innovation patents, US design patents and Australian design registrations have different terms; and
• many patents do not last until the end of their term.

The term of a patent starts on the effective filing date of the patent. 

If a single patent application is filed and leads to a single patent, the effective filing date is the actual filing date.

If the strategy is more elaborate, the effective filing date could be up to 12 months after the first patent application. In this way, the term of a 20-year patent is often effectively closer to 21 years (more on this below). In the context of international patent strategies, the effective filing date is often the date of filing the PCT application. 

In Australia, the effective filing date is called the ‘date of the patent’ or ‘patent date’. Here’s an extract from the Australian Patent Office’s Auspat database showing that patent no. 2021201775 has a filing date of 22 March 2021 and is in turn due to expire 22 March 2041.

 

LIMIT NOT GUARANTEE

Many patents do not last until the end of their term

Patents are granted only after the patent application passes examination – e.g. a patent won’t be granted if a patent examiner locates evidence that the invention was not new when the initial patent application was filed.

Even after a patent is granted, it will reach the end of its term only if the renewal fees are paid and it is not successfully challenged in the meantime – e.g. a granted patent will be revoked if a challenger can show that the invention was not new when the initial patent application was filed.

In most countries, renewal fees are payable annually and the amount of the fee increases from year to year. More on patent costs. 

Once a patent completes its term it ‘expires’ meaning that it is no longer in effect and no further renewals are possible. In theory, competitors are now free to make, use and sell (etc.) their own versions of the technology. In practice, some caution is called for – more recent patents covering more recent versions of the technology might still be in force.

Most countries allow a patent application to ‘claim priority’ from a foreign patent application filed up to 12 months earlier, e.g:

May 2025 – a US patent application is filed;

May 2026 – a corresponding Australian patent application is filed;

May 2046 – the end of the Australian patent term.

The scenario also works in reverse. An Australian patent application could be filed and lead to a US patent that lasts until 21 years from the Australian filing date.

Even if Australia is the only country of interest, an Australian provisional patent application could be filed and followed up with an Australian non-provisional patent application 12 months later to similar effect.

The following is an extract from the cover sheet of the patent mentioned above. It shows that the patent is ‘associated with’ provisional patent application no. 2020901922 filed 11 June 2020 – that is, filed more than 20 years before the patent’s 22 March 2041 expiration date.

 

25 YEARS

Pharmaceutical extensions of term

In Australia, pharmaceuticals must be registered with the Therapeutic Goods Administration before they can be sold in Australia. This is a safeguard to ensure that new drugs are properly tested, but can significantly delay the first sales. To compensate pharmaceutical innovators, the term of Australian pharmaceutical patents can be extended by up to five years depending on the length of the regulatory delay.

After a patent application is filed, it is examined by the national patent office. If the application passes examination, it is allowed (or ‘accepted’ as we call it in Australia) and then a patent is granted on the application.

The United States Patent and Trademark Office routinely provides short extensions referred to as ‘patent term adjustments’ to compensate for patent office delays during examination. These adjustments are often in the vicinity of a few weeks.

PATENT APPLICATIONS

How long does a patent application last?

Provisional patent applications last for 12 months. Within that timeframe, one or more non-provisional patent applications must be filed to continue the patent application. This might entail a PCT application covering most countries or separate national non-provisional patent applications.

PCT applications last until two and a half years from filing the first patent application. Within that timeframe, action to secure separate non-provisional patent applications in the countries of interest must be taken. This step is called entering the national phase. The deadline varies from country to country. Generally speaking, it’s 30 or 31 months from the first patent application. In Australia it’s 31 months.

National non-provisional patent applications typically last a few years until examination and the application ends either because it succeeds and a patent is granted or because it fails and the application lapses leaving no rights outstanding.

Australia has an 8-year patent, referred to as the ‘innovation patent’, that is being phased out as of 25 August 2021. New innovation patents can be obtained only if they are linked back to an innovation patent application, an Australian standard patent application and/or a PCT application filed before then, so the 8-year term of the last innovation patents will end 25 August 2029.

Design rights protect the appearance of products. US design patents last until 15 years after grant. It often takes about two years to get to grant, so the effective patent term is often about 17 years.

 

10 YEARS

Australian design registration

Australian design rights are referred to as ‘design registrations’. They last for up to 10 years and that period can be extended by six months of priority right.

Please contact us when you’re ready to start the conversation.

Further reading:

-> Patents

-> Design registration

-> Intellectual property