How to Determine the Patent Validity?


While filing for a patent, it is important to know that till when it is going to give you protection, that is, the patent validity. We often misunderstand that patent provides protection forever. However, it is not true. A patent gives you protection for a limited period of time and its validity is limited and not life-long.

There are certain things that you need to ascertain before estimating the validity of the patent. It depends on certain factors related to patents that we are going to study further in this article. Patent validity depends on such factors and comes with limited validity.

Type of Patent

The most important factor to determine the validity of a patent is by the type of patent:

There are 3 types of patents namely, utility patent, design patent, and plant patent, and the validity of patents majorly depends on their type.

When we talk about patent in general, that usually means utility patent. Utility patents provide protection to processes, methods, or machines, etc. for a period of 20 years from the date of filing of the application to the patent office. It is the same for plant patents as well, it is also valid for a period of 20 years from the date of filing of the patent application.

While on the other hand, design patents are available for a period of 14-15 years from the date of getting the patent grant. They provide protection to the designs newly invented by the inventor.

Also read: Design Patent Details you Need to Know

How to Determine the Validity of a Patent?

You must determine the correct validity of the patent so that it doesn’t get you into unnecessary trouble. It is not that easy to determine the validity of a patent with all those filing dates and complicated processes. But a proper search through the process can help you get to the exact time for which the patent is valid.

As we know, the patent validity in case of a utility patent would depend on the filing date of application. The patent is valid for a term of 20 years from the date of filing of application. There can be certain for that as well:

Provisional Application

A provisional patent application is valid for a period of 1 year. It helps to keep space for your application in the patent office. You can file a provisional application before actually filing your patent application at the patent office. It obviously gives you more time to do more research on your invention and prepare a patent application, but it reduces the life of your patent.

Patent validity will be counted from the date you file a provisional application at the patent office. So, an extra year to work on your patent application costs you a reduction in the validity of the patent. The earliest filing date is considered to calculate the validity of a patent and that is the date of filing the provisional application.

Also read: Patent Illustration Work: How to Create a Perfect Disclosure?

Rules of Filing

There has been a substantial change in rules regarding calculating the date of validity of the patent. For utility patent, it is the same, i.e., the patent is valid for 20 years from the earliest filing date. But in the case of a design patent, the validity depends on when you filed it because, after May 13, 2015, the rule has changed. The patent filed on or before this date has a validity of 14 years from the time you get the patent grant. After this date, the patent is valid for a period of 15 years from the date you get the patent grant. So, you enjoy an extra year of validity if you have got the grant after May 13, 2015!

Patent Delay

It is true that the patent is valid for a period of 20 years from the earliest filing day, but what if the unnecessary delay is caused at the end of the patent examiner. The patent grant if delayed by the patent examiner then that is compensated with additional validity of the patent along with 20 years from the earliest filing date.

You cannot claim the patent rights before the patent office gives you a go-ahead, so that can not be done and therefore, the time period is extended in such cases. But there is no way that you can enforce the patent rights and make use of your invention as a sole owner before the patent is actually granted to you.

Also read: Importance of Patent and Patent Search

Overview

The patent enforceability depends on the date on which the patent grant is given and before that, you cannot claim any legal rights on the invention. The validity of the patent depends on the date of filing and date of grant for utility and design patent respectively. Usually in the case of a plant patent as well, the validity for the patent is 20 years.

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