Enforcing a Patent FAQ

What are the different stages of a patent's life?

Although most inventors are concerned with the rights a patent grants during its monopoly, or in-force, period (from the date the patent issues until it expires), the law actually recognizes five "rights" periods in the life of an invention. These five periods are as follows:

  1. Invention conceived but not yet documented. When an inventor conceives an invention, but hasn't yet made any written, signed, dated, and witnessed record of it, the inventor has no rights whatsoever.
  2. Invention documented but patent application not yet filed. After making a proper, signed, dated, and witnessed documentation of an invention, the inventor has valuable rights against any inventor who later conceives the same invention and applies for a patent. The invention may also be treated as a "trade secret" -- that is, kept confidential -- which gives the inventor the legal right to sue and recover damages against anyone who immorally learns of the invention (for example, through industrial spying).
  3. Patent pending (patent application filed but not yet issued). During the patent pending period, including the one-year period after a provisional patent application is filed, the inventor's rights are the same as in Period 2 above. With one exception, discussed below, a patent application does not give an inventor any extra rights -- only the hope of a future monopoly that begins when a patent issues. However, most companies that manufacture a product that is the subject of a pending patent application will mark the product "patent pending" in order to warn potential copiers that if they copy the product, they may have to stop later (and thus scrap all their molds and tooling) if and when a patent issues.
    Eighteen months after filing, and while the application is pending, the U.S. Patent and Trademark Office (USPTO) will publish the application unless the applicant files a Nonpublication Request at the time of filing and doesn't file for a patent outside the U.S. If the application is published during the pendency period, an inventor can later obtain royalties from an infringer from the date of publication provided (1) the application later issues as a patent; and (2) the infringer had actual notice of the published application.
  4. In-force patent (patent issued but hasn't yet expired). After the patent issues, the patent owner can bring and maintain a lawsuit for patent infringement against anyone who makes, uses, or sells the invention without permission. The patent's in-force period lasts from the date it issues until it expires. Also, after the patent issues, it becomes a public record or publication that blocks others from getting patents on the same or similar inventions -- that is, it becomes "prior art" to anyone who files a subsequent patent application.
  5. Patent expired. After the patent expires, the patent owner has no further rights, although infringement suits can still be brought for any infringement that occurred during the patent's in-force period, as long as the suit is filed within the time required by law. An expired patent remains a valid "prior-art reference" forever.

To Learn More

For a clear guide to every step of the patenting process, read Nolo's Patents for Beginners, by David Pressman and Richard Stim (Nolo).

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