A patent lets you stop others, for a limited time

A fence, not a permit

A patent gives you "the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States" (35 U.S.C. § 154). Notice what is missing. Nothing in that sentence says you may make or sell anything. The USPTO, the US Patent and Trademark Office, says so directly: "What is granted is not the right to make, use, offer for sale, sell or import the invention" (USPTO Patent Essentials).

In our judgment, the practical point is this: owning a patent tells you nothing about whether you are free to sell your product, because someone else's patent may still cover it.

What the right reaches

Infringement covers making, using, offering, selling and importing a patented invention, and inducing someone else to infringe is also a source of liability (35 U.S.C. § 271). Claims are the numbered statements that define what a patent covers. Issued patents are presumed valid, claim by claim (35 U.S.C. § 282), and proving invalidity takes clear and convincing evidence, as applied in Duke v. Sandoz.

When the clock starts

Utility and plant patents run up to 20 years from the earliest US non-provisional filing date claimed (35 U.S.C. § 154; MPEP 2701). A non-provisional is the regular application. Because the clock runs from filing, time spent in examination comes out of your term.

Two earlier filings do not start that clock: a foreign priority application (35 U.S.C. § 154) and a provisional, the simpler application that is not examined (Ex parte Baurin, n.3). Design patents work differently and run 15 years from grant (35 U.S.C. § 173).

Adding to the term

Patent term adjustment (PTA) adds days for Office delay: missing 14 months to a first action, 4 months to act on a reply or appeal, or 3 years to issue. It is reduced for applicant delay and limited by any terminal disclaimer, a filed statement giving up term (35 U.S.C. § 154(b)). Patent term extension is separate. It compensates for regulatory review and is capped at 5 years, with 14 years remaining after approval (35 U.S.C. § 156).

Published applications can earn a reasonable royalty before grant, but only with actual notice and substantially identical claims (35 U.S.C. § 154(d)).

Old numbers you may see

The 17-year term is history, as is the 14-year design term for designs filed before May 13, 2015. Older opinions such as Kewanee still mention 17 years.