Written by attorney Edward D. Robinson

What Happens if a Patent Owner Fails to Pay Maintenance Fees?

If a patent owner does not pay the maintenance fees on a patent, they may lose their rights as the owner of the patent. Generally, a U.S. patent is good for 20 years from the filing date of the patent. To maintain the patent, the owner must pay “maintenance fees" to the U.S. Patent & Trademark Office at intervals of 3.5 years, 7.5 years and 11.5 years after the issue date of the patent. A patent that expires for failure of payment of the maintenance fees will expire on the 4th year, 8th year, or 12th year anniversary date that the patent was granted.

If the maintenance fees are not paid, the patent will lapse and cannot be enforced, with two exceptions: patents for design or plant patents have no maintenance fees. If a patent has lapsed due to the owner’s failure to pay maintenance fees, the patent may still be revived for up to two years after the lapse, if the delay in paying the fees was unintentional. For later revivals, the USPTO requires proof that the delay in paying the fees was unavoidable, a very high standard to meet.

Third parties, who begin practicing the invention while the patent has lapsed due to the patentee’s failure to pay the required maintenance fees, are permitted to acquire “intervening rights," an equitable doctrine that permits continued use of the invention even if the patent owner obtains the reinstated patent. Therefore, patent owners must be diligent in paying the required maintenance fees on time, or risk losing the benefits of patent protection.

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