Fort Mill, SC asked in Patents (Intellectual Property) for South Carolina

Q: Hello. I have a question about a patent for a fitted bed sheet with pockets. Is it expired I'm unable to decipher that?

I was able to Google and saw there was a patent for fitted sheets with pockets but unsure I'f it is expired

1 Lawyer Answer
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: Patent term is more confusing than it should be. The one part that is simple, is that patent term is not a function of the technology. There is not a way for the applicant to apply to extend the patent term (unlike trademarks or copyrights). (but as noted below, there are things that can shorten the term) It is the same for dishwasher patents or patents on an ultrasound machine. Unfortunately, to try to make things fair, the rules have a number of layers.

Old rules were that patents had a term of 17 years from when they issued. New rules are that apply to patent applications filed after June 8, 1995 are 20 years from the first non-provisional patent application. Applications pending on June 8, 1995 get to choose between the old and new rules so it is possible that something could pop out with a 17 year term that was filed before June 8, 1995 but that is pretty rare.

So you ignore the filing date of the provisional application (if any) and look to the oldest non-provisional patent application in the chain of priority. Some applications claim priority back to an earlier non-provisional application via a divisional application, continuation application, or continuation-in-part application.

There are several things that can change this default 20 year term

1) Patent Term Adjustment -- These are bonus days added to the end of the term to make up for the Patent Office being slow in doing their job. This is printed on the patent.

2) Patent Term Extension -- There are extra days added to things undergoing certain types of regulatory review such as review of a new drug at the FDA. The thought is that patent days should not tick off the clock while you are not allowed to sell the product.

3) Sometimes two patent applications are deemed similar by the patent office and they tie the end date of the second application to the end date of the first application. This is called a terminal disclaimer and rarely has a huge impact due to the new 20 year rule.

4) The patent owner has the option of disclaiming the rest of the patent term. This rarely happens but could if the patent owner was worried about an antitrust charge from maintaining a blatantly invalid patent.

5) Some patents become toothless as the claims are deemed invalid or unenforceable in litigation.

6) The patent may expire early if the patent owner does not pay a renewal fee by start of years 4, 8, and 12. This fee is called a maintenance fee. You can see the status using Public PAIR or you can check at https://fees.uspto.gov/MaintenanceFees.

Finally, with respect to design patents that cover the distinctive ornamental appearance filed after May 13, 2015, the term is 15 years from issuance. (No maintenance fees, no Patent term adjustment)

Your patent attorney can sort through these nuances if this seems overwhelming.

Google tends to gather all the information about a patent or patent application and put it in one place as the Google system was built recently and is not stuck with government bureaucracy and legacy siloed databases.

The USPTO systems are separate and sometimes that is good in that you have some additional field level control for searching but some systems show a snapshot of how things were at some point of time and do not get updated.

To get a more wholistic view, you can go to USPTO Public PAIR which has most of the relevant information about an issued patent or a published patent application in one set of screens. You can drill down and read the actual arguments made by the USPTO to argue against giving an allowance and the responses from the patent attorneys. This is a very useful tool (there are imperfections but it is a great place to start). https://portal.uspto.gov/pair/PublicPair

I hope this helps.

Kevin E Flynn

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