Patents are essential instruments in protecting inventions. If you own a patent, it means that you can exclude any third party from using and/ or commercially exploiting your invention without your permission.
Patents are, however, not permanent. They are granted for a limited period only. Usually, patents are granted for a period of 20 years from the date of applying for the patent. After 20 years, the patent expires.
What is the patent expiration?
As already stated, a patent is granted for a limited period. Your patent will expire after a period of 20 years from the date of the application for the patent. It is essential to understand the difference between a patent that has expired and a patent that has lapsed. A patent lapses because of the non-payment of renewal fees. If the renewal fee is not paid within the prescribed period of time, a patent will lapse. However, a patent expires after the entire validity period that the patent was granted for.
What are the benefits of an expired patent?
After a patent expires, there are many opportunities to utilize the invention. The patent specification must describe the invention in such a way that a person of average intelligence in the field of an invention must be able to reproduce it. Once a patent expires, it enters the public domain and can be used freely. Expired patents lead to new business opportunities and can be used for the benefit of the public.
Expired patents are especially useful in the pharmaceutical industry. This is because, if the patent for a particular medicine has expired, a third party will be able to produce the same medicine for a much lower cost. They are thus making it more affordable and accessible. New products can now enter the market at a lower price, something that was not possible during the continuation of the patent.
Thus expired patents have the social benefit of making the inventions more accessible. In the pharmaceutical industry, being able to get medicines at a lower price is a significant benefit.
How to calculate when your patent will expire?
It seems simple enough. Your patent expires after 20 years from the date of applying for the patent. The process of calculating exactly when your patent expires is slightly more complicated than it seems. It depends on a variety of factors:
– Type of patent application
– Date of filing
– Date of grant
– Payment of maintenance fee
– Term adjustment
– Term extension
Let’s take a look at how you can calculate your patent term in India:
Section 53 of the Indian Patent Act, 1970, states that the term for every patent will be 20 years from the date of filing the patent application. The explanation to the section states that for international applications under the Patent Cooperation Treaty (PCT), designating India, the expiry will be 20 years from the international filing date accorded under the PCT.
For patents granted before the year 2003, the unamended Section 53 will apply. The unamended section reads like this:
(a) in respect of an invention claiming the method or process of manufacture of a substance, where the substance is intended for use, or is capable of being used, as food or as a medicine or drug, be five years from the date of sealing of the patent, or seven years from the date of the patent whichever period is shorter; and
(b) in respect of any other invention, be fourteen years from the date of the patent.
So, before the year 2003, the validity of a patent for food or drug or medicine was 5 or 7 years, and for any other invention was 14 years. After 2003, the validity of a patent will be for 20 years.
Now, let’s see how to calculate the patent term for a patent granted after the year 2003:
First, you have to determine the type of application: whether it is an application filed directly in India or a convention application in India or as a National Phase application through PCT.
For an application filed directly in India, the expiry is 20 years from the date of filing the application. If a provisional specification is filed and the complete specification is filed within 12 months of having filed the provisional specification, the date of expiry is calculated from the date of having filed the provisional specification.
If a divisional application is filed, 20 years is calculated from the date of having filed the parent application.
For patents granted against convention application, the expiry is 20 years from the date of filing in India and not from the date of priority.
For patents granted against PCT applications, the date of expiry is 20 years from the international filing date or PCT filing date and not from the priority date or the India filing date.
| Type of Application | Filed in India | Convention application in India | National Phase application through PCT |
| Non-provisional | 20 years from the date of filing application | 20 years from the date of filing in India | 20 years from the international filing date or PCT filing date |
| Provisional Specification | 20 years from the date of filing the provisional specification | 20 years from the date of filing the provisional specification | 20 years from the international filing date or PCT filing date |
| Divisional Application | 20 years from the date of filing the parent application | 20 years from the date of filing the parent application in India | 20 years from international filing date/ PCT filing date of the parent application |
How to retrieve expired patents?
Usually, each country will have its own database for expired patents. Let’s take a look at the Indian database.
On the government website, you will find a page dedicated to retrieving expired patents.
Here you will find different tabs:
+ Expired patents
+ Ceased due to Nonrenewal
+ Search by patent number
+ Search by Title of the invention
Under the Term Expired tab, all the expired patents are listed. You can narrow the search by using the Field of Invention tab and choosing a particular field. For example, if you’re looking at medicines with expired patents, you can select Pharmaceutical under the Field of Invention tab.
You can choose the Field of Invention under Ceased due to Nonrenewal as well.
If you’re searching for a particular patent and you know the patent number or the Title of the invention, you can choose, Search by Patent Number or the search by Title of Invention, respectively.
Expired patents pose a plethora of possibilities. It can be used for the social benefit of society. However, it is crucial to conduct due diligence in order to ensure that the patent has expired and it’s in the public domain, free to use.
