Can an Expired Patent Be Renewed?

Legally reviewed by Thomas Lemler - founder of Lemler IP

When a patent expires, it can feel like the end of an era for an inventor or business that has relied on its protections. Patents provide exclusive rights to exclude others from manufacturing, using, and selling an invention, but those rights don’t last forever. Eventually, patents expire, opening the door for competitors to replicate or improve upon the innovation. That said, if you’re a patent holder of an expired patent, you may wonder if it can be renewed, or if this exclusivity is permanently lost. Continue reading and speak with a knowledgeable Washington, D.C. patent lawyer from Lemler IP to learn more. Here are some of the questions you may have:

Why Do Patents Expire?

The primary purpose of patent law is to ensure that inventors have incentives to continue creating products, while ensuring that the public eventually has access to these technological advancements. 

The Policy Behind Patent Expiration

Patents expire for one simple reason—innovation thrives when new ideas enter the public domain. The U.S. Patent and Trademark Office (USPTO), through the power granted by the U.S. Constitution, grants patents for a limited time to reward inventors while ensuring that advancements eventually benefit society as a whole.

Patent Term Lengths in the United States

• Utility patents, which cover functional inventions, typically last for 20 years from the filing date
• Design patents, which protect the appearance of an item, are valid for 15 years from the date of grant. 
• Plant patents, which protect new, asexually reproduced plants, are valid 20 years from the filing date

Maintenance Fees and Early Expiration

However, maintaining a patent requires more than just waiting out the term. While Design Patent holders are not required to pay maintenance fees, Utility Patent holders must pay maintenance fees at regular intervals:

• 3.5 years
• 7.5 years
• 11.5 years

 If these fees are not paid, the patent will lapse before its full term.

Is There Any Way to Revive an Expired Patent?

Reviving a Patent That Lapsed for Non-Payment

If a patent owner unintentionally or inadvertently fails to pay the required maintenance fees, they may file a petition to reinstate the patent. The USPTO typically allows for reinstatement if the delay in payment was unintentional or due to unavoidable circumstances. However, this process requires:

• Formal documentation
• Payment of additional fees

If too much time has passed, or if the USPTO determines that the delay was not excusable, the patent will remain expired.

Patents That Can’t Be Renewed

Once a patent reaches its full term, it cannot be renewed. The exclusive rights granted under the patent cease, and the invention enters the public domain, meaning anyone can use, produce, or sell it without permission from the original patent holder.

Other patents that cannot be renewed include those intentionally abandoned and those invalidated by a court decision. 

Can a Patent’s Protection Ever Be Extended?

Under limited circumstances,  you may be eligible for an extension of your patent’s protection, typically when it involves certain regulated products.

Patent Term Extensions for Regulated Products

Certain regulated products may be eligible for an extension if there were regulatory approval delays. Under 35 U.S.C. 156, these products include: 

• Pharmaceuticals
• Medical devices
• Agricultural chemicals

However, you should note that these limited extensions are statutory and strictly limited in their duration.

What Does Not Count as a Patent Extension

The following actions do not constitute a patent extension:

• Filing a new application for an already registered product
• Continuing to sell the product
• Registering the product for a copyright or trademark

Continuation Applications and Ongoing Protection

In some instances, you may be able to use continuation applications to extend protections around an invention. This can help inventors and businesses:

• Refine the scope of the claim
• Pursue additional claims
• Respond to competitors without disclosure
• Maintain leverage during licensing or enforcement matters

Using Continuation Applications Strategically

In order for a continuation application to be valid, it must be filed while the original application is still pending. This cannot be used to revive an already expired patent. 

What Are the Alternatives After a Patent Expires?

If a patent has expired and cannot be reinstated, patent holders still have options to protect their intellectual property. 

Trade Secret Protection

One possible avenue is seeking trade secret protection if the invention involves proprietary information that can remain confidential, as long as that confidential trade secret information does not violate the disclosure requirements of the Patent. This generally applies to:

• Manufacturing methods
• Processes not disclosed in the patent

Unlike patents, trade secrets do not expire as long as they are kept secret.

Filing Patents on New Improvements

Another strategy is to file for a new patent on an improved version of the original invention. If the modifications are significant enough to meet the USPTO’s standards for novelty and non-obviousness, a new patent may be granted, giving the inventor fresh legal protections.

Branding and Trademarks

Additionally, businesses can utilize branding and trademark protections to maintain a competitive edge even after a patent expires. A trademark can help protect:

• Product names
• Logos
• Brand identity

A strong brand, associated with quality and innovation, can continue to deter competitors from successfully copying a product, even when legal exclusivity has ended.

Contact Our Washington, D.C. Patent Attorneys

If you are ready to apply for a patent or you have questions about your existing patent, it’s in your best interest to connect with the team at Lemler IP. Our law firm understands how important these matters are, which is why we are ready to guide you through this process. Contact us today to learn more.