When Does Intellectual Property Expire?
The Technical Expert Solution for IP Teams
Intellectual property, including patents, trademarks, and copyrights, is not a tangible thing. These assets do not all last forever, and in some cases, they need to be maintained in order to remain something that can be protected under IP. Understanding the terms of these assets is very important if you are going to protect an asset and be able to enforce that protection.
Patent law protects the ideas that are embodied in inventions. Patent rights are granted by the US Patent and Trademark Office (known as PTO) to inventors who have applied for and successfully prosecuted patent applications on their inventions. There are no patent rights in the common law. A successful patent then grants the holder the right to exclude other people from making, using, or selling their invention in the United States or importing it into the United States.
There are three kinds of patents: utility, design, and plant. Utility patents are used to protect new processes, machines, articles of manufacture, compositions of matter, or any new and useful improvements of any of things. Design patents are used to protect new, original, and ornamental designs for an article of manufacture. Plant patents protect new varieties of asexually reproduced plants.
Patent protection only lasts for a limited duration. Utility and plant patents that have been filed on or after June 8, 1995, carry a term of protection for twenty years from the date of filing. The term for design patents is only fourteen years, starting from the issue date. In order to keep your utility patent enforceable during this twenty-year term, you will need to pay maintenance fees to the Patent and Trademark Office after three and a half, seven and a half, and eleven and a half years after the patent is issued. You do not need to pay maintenance fees on design and plant patents.
Trademarks
A trademark is a word, name, symbol, device, sound, smell, or color that is used to identify and distinguish one company’s goods or services from another’s. Trademarks are useful for consumers because the trademark represents the goodwill of the company, and the quality of the goods and/or services that the company offers.
Trademark rights come from use, and in most cases, begin on the day in which the trademark is first used in commerce, linked with goods and services. Most importantly, trademark rights are perpetual, as long as the trademark is still being used in commerce. Trademarks can be federally registered with the PTO, but it isn’t necessary to register in order to be protected. However, without federal registration, which gives nationwide rights, the scope of the trademarks only covers the geographic areas that you are using the trademark in.
Federally registered trademarks carry a term of protection of ten years from the date of registration, as long as you continue to pay maintenance fees. A declaration of continued use must be filed with the PTO during the sixth year of registration. After this first ten-year term, registered trademarks can be renewed every ten years in perpetuity as long as a declaration of continued use, a renewal application, and a fee are submitted. If you don’t maintain federal registration, it will be canceled. If this happens, the trademark owner still has common law rights as long as the trademark is still in use.
Copyrights
Copyright protection covers the original works of authorship that are fixed in a tangible medium, such as a book, artwork, photograph, or website. Similar to trademarks, copyright protection exists whether or not the work has been registered with the federal government. Copyright protection also exists whether or not the work has been published. Published means distributed to the public by sale or other transfer of ownership or by rental, lease, or lending.
Copyright protection doesn’t last forever, unfortunately, and how long this protection lasts is the same whether or not the work has been registered. Works that were created after January 1, 1978, by individuals will get protection for 95 years from the date of the first publication, or 120 years from the date of creation (whichever ends first). Work that was published without notice of copyright between 1978 and March 1, 1989, fell into the public domain unless the mistake was put right within five years of publication. Notice is no longer needed for work that has been published on or after 1989.
Understanding what your intellectual property actually protects and how long it is protected for are the first steps in being able to maintain and enforce your valuable assets.