Maintenance Fees

A maintenance fee is the fee that is required to be paid to the Patent Office, after issuance of a utility patent, in order to maintain the patent and keep the patent from falling into the pubic domain. Maintenance fees must be paid for utility patents issued on applications filed on or after December 12, 1980. Maintenance fees are required to be paid in order to keep the patent term running for utility patents. Maintenance fees are not required for plant patents and design patents. Likewise, maintenance fees are not required for a reissue patent if the patent being reissued did not require maintenance fees in the first place.

There are three maintenance fee payments that must be made in order to ensure the patent term remains in tact. These due dates are defined in 35 U.S.C. 41(b) and are 3 ½ years after the date of issuance, 7 ½ years after the date of issuance and 11 ½ years after the date of issuance. 37 CFR 1.362(d) sets forth the time periods when the maintenance fees for a utility patent can be paid without a surcharge. These periods, referred to generally as the “window period,” are the 6-month periods preceding each due date. The window period for the first maintenance payment is between 3 years after issuance and 3 ½ years after issuance. The window period for the second maintenance payment is between 7 years after issuance and 7 ½ years after issuance. The window period for the final maintenance payment is between 11 years after issuance and 11 ½ years after issuance. A maintenance fee paid on the last day of a window period can be paid without surcharge. The last day of a window period is the same day of the month the patent was granted 3 years and 6 months, 7 years and 6 months, or 11 years and 6 months after grant of the patent. In other words, if your patent issued on September 30, 2003, the last day you could pay the first maintenance fee without also paying a surcharge would be March 30, 2007. This may seem simple enough, but remember that September has only 30 days, so your patent issued on the last day of September. Some may, therefore, be tempted to say that the first maintenance payment could be made without a surcharge as late as the last day of March, which would be March 31, 2007. A maintenance fee paid on March 31, 2007, would be accepted, but if and only if it were accompanied by the appropriate surcharge.

If a maintenance payment is not made by the due date the patent term is not necessarily over. 37 CFR 1.362(e) sets forth the time periods when the maintenance fees for a utility patent can be paid with surcharge. The grace period for the first maintenance payment is between 3 ½ years after issuance and 4 years after issuance. The grace period for the second maintenance payment is between 7 ½ years after issuance and 8 years after issuance. The grace period for the final maintenance payment is between 11 ½ years after issuance and 12 years after issuance. A maintenance fee may be paid with the surcharge on the same date (anniversary date) the patent was granted in the 4th, 8th, or 12th year after grant to prevent the patent from expiring.

For Fiscal Year 2007 the maintenance fees are as follows: