A maintenance fee is a fee paid to the United States Patent and Trademark Office after the patent grant. The patent expires upon failure to pay the required maintenance fee.
When are patent maintenance fees due?
The patent maintenance fees are due 3 1/2 years, 7 1/2 years, and 11 1/2 years after the patent is granted. The maintenance fee cannot be paid before it is due. Also, patent owner has a period of six months after the due date to pay the maintenance fee. Otherwise, the patent will expire.
What happens if you fail to pay a maintenance fee?
A patent will expire upon failure to pay the maintenance fee. After expiration of the patent, the patent owner cannot enforce the patent against infringers and competitors. As such, unless the patent owner has absolutely no desire to enforce the patent or the patented technology is not in use, do not allow the patent to expire.
How do you reinstate an expired patent due to the failure to pay a maintenance fee?
After a failure to pay a patent maintenance fee, the patent office provides a six month window in which the patent owner can request reinstatement of the expired patent. The patent owner has to declare that the failure to pay was unintentional, the required maintenance fee must be paid, and the petition to reinstate the expired patent must be filed within six months after expiration.
For example, if a patent maintenance fee was due on January 1, 2020, the patent maintenance fee was due by June 30, 2020. On July 1, 202o, the patent expired for failure to pay the maintenance fee. The petition to reinstate the expired patent must be filed by December 31, 2020.
What rights does the patent owner have after reinstating an expired patent?
After the patent expires, competitors are allowed to copy the patented technology. It would be unfair to competitors to enjoin them after relying upon notice of the expiration of the patent. As such, the patent laws allow competitors to continue to infringe if they started infringing your patent during the period the patent had expired.
How much are the maintenance fees?
The patent maintenance fee increases the longer the patent has been in force. The 11 1/2 year patent maintenance fee is more than the 7 1/2 year patent maintenance fee. Search in google for the patent maintenance fee.
Also, the cost of the maintenance fee depends on your entity size. Each time you pay the maintenance fee, you must determine if you are still a micro entity or small entity to make sure that you are paying the right amount. For example, if you were supposed to pay a large entity fee but paid the small entity fee, the patent will be invalidated when you litigate the patent. Click Entity Size Definition.