Intellectual property protections give you an advantage over your competitors. If you’re not unique it can be harder to stand out from the crowd. So when you find success through unique means – a unique invention, process, message or branding – you will naturally want protection. Filing for and obtaining IP protection is just the beginning. Once you get your protection in place, whether it’s a patent or a trademark registration, it’s tempting to think, “I’m done,” and forget about it.
Your intellectual property protections will require maintenance or renewal over time. Patents, trademarks, and copyrights each have their own requirements in order to maintain protection. We’ll dive into each of these so you can prepare for the future of your product or process.
Okay, not to pull the rug out from under you right away, but patents don’t actually have a renewal process per se. Instead, patents last for a predetermined period of time based on the type of patent. The life of your patent will be (give or take minor adjustments):
- 20 years from the filing date for utility patents
- 20 years from the filing date for plant patents
- 15 years from issuance for design patents filed on or after May 13, 2015
- 14 years from issuance for design patents filed before May 13, 2015
These terms cannot be extended or shortened outside of adjusting for any filing or review delays which will be minimal extensions at best. You can, however, for a limited time make non-obvious changes to a previous invention and file for a new patent that provides you with some continued IP protection.
Even though they are not renewed per se, patents must be “maintained” to remain in force. Patent owners must pay “maintenance fees” to the USPTO over the life of the patent. Those fees will be due 3.5 years, 7.5 years, and 11.5 years from the date that the patent was issued. Failure to pay those fees will cause the patent to expire prematurely.
Trademarks last so long as you are using the mark as a trademark – potentially forever. And they exist whether registered or not. But Trademark Registrations (which provide valuable advantages to your business) have a strict renewal schedule you must adhere to in order to maintain protection. Thankfully, officials with the U.S. Patent and Trademark Office will attempt to contact you when the time comes to renew. Make sure your contact information is up-to-date with the USPTO to ensure you get their reminders. We remind our clients well before the deadline to help keep their registrations in force.
You will file for renewal of your registration with the USPTO under specific sections of the trademark law. The timelines for renewal are:
- Between the fifth and sixth years after the registration date (file under Section 8)
- Between the ninth and 10th years after the registration date (file under Sections 8 and 9)
- Every ten years after that (file under Sections 8 and 9)
On top of those timelines, you must also consistently use and provide proof of use or excusable nonuse of the registered mark.
In addition to the required filings noted above, in year 5 you can file an Affidavit of Incontestability, which ironclads your trademark rights against certain kinds of attacks. After the 6th anniversary of registration, Incontestability is not available. Don’t miss this important deadline! It can save you thousands of dollars in legal fees when you need to enforce your trademark.
Copyright protection lasts significantly longer than patent protection and no longer requires renewal applications. Instead, the copyright will continue for decades to come – even after you’re gone.
The date that the work was published will dictate the length of its protection. For works published or registered prior to January 1, 1978, the old 1909 Act applies, as dictated by Chapter 3 of the Copyright Act (Section 304) requiring renewal after the first 28 years. For works published or registered after that date, the protection will generally last for the life of the author plus 70 years after their death. If the work is from an anonymous or pseudonymous source then it will last for 95 years from the year of publication or 120 years from the date of creation – whichever comes first.
After this, the copyright in the work will move to the public domain, meaning it is free for anyone to use. This is why we’ve seen recent instances of notable literary properties becoming the subject of strange productions after those properties became public domain.
As with trademarks, copyrights exist whether registered or not. But unregistered copyrights cannot be enforced. So if you value your creative works, register their copyrights without delay, ideally within 90 days of publication.
At IP Works Law, we handle a wide variety of intellectual property protection. We know how the process works and can help you Power Your Ideas. Contact our offices and we’ll make sure your work gets the protection it deserves.