Title 35 — PatentsRelease 119-73
§154 Contents and term of patent; provisional rights
Title 35 › Part PART II— - PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS › Chapter CHAPTER 14— - ISSUE OF PATENT › § 154
Summary
A patent gives the owner the right to stop other people from making, using, offering for sale, selling, or importing the invention in the United States. If the invention is a process, the owner can also stop others from using or selling products made by that process. The patent must include a short title and the specification and drawings. The patent runs until 20 years after the date the U.S. application was filed (or, if the application properly claims an earlier U.S. filing date under certain continuing-application rules, from that earlier date). Priority claims under certain foreign or provisional rules do not change that 20-year term. If the U.S. Patent and Trademark Office delays beyond set time limits, the Director must add days to the patent term to make up for the delay. Examples of delays that can add time include the Office not giving required notices within 14 months, not responding to replies or appeals within 4 months, or not issuing the patent within 3 years (with some applicant-caused delays excluded). Overlapping delays are not counted twice, and any extra term is reduced for times when the applicant took too long to reply (more than 3 months). The Director decides the adjustment, tells the applicant by the issue date, and offers one chance to ask for reconsideration; an unhappy applicant can sue in the U.S. District Court for the Eastern District of Virginia within 180 days. If an application is published before the patent issues, people who knowingly made, used, sold, or imported what the published claims describe may owe a reasonable royalty from publication until the patent issues, but only if the issued patent’s claims are substantially the same as the published claims and any suit for that royalty is brought within 6 years after the patent is issued. For applications filed before the date that is 6 months after the Uruguay Round Agreements Act was enacted, the term is whichever is longer: 20 years from filing or 17 years from grant, with limited exceptions for prior investments or activities described in the law.
Full Legal Text
Title 35, §154
Patents — Source: USLM XML via OLRC
(a)(1)Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process, referring to the specification for the particulars thereof.
(2)Subject to the payment of fees under this title, such grant shall be for a term beginning on the date on which the patent issues and ending 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application or applications under section 120, 121, 365(c), or 386(c), from the date on which the earliest such application was filed.
(3)Priority under section 119, 365(a), 365(b), 386(a), or 386(b) shall not be taken into account in determining the term of a patent.
(4)A copy of the specification and drawing shall be annexed to the patent and be a part of such patent.
(b)(1)(A)Subject to the limitations under paragraph (2), if the issue of an original patent is delayed due to the failure of the Patent and Trademark Office to—
(i)provide at least one of the notifications under section 132 or a notice of allowance under section 151 not later than 14 months after—
(I)the date on which an application was filed under section 111(a); or
(II)the date of commencement of the national stage under section 371 in an international application;
(ii)respond to a reply under section 132, or to an appeal taken under section 134, within 4 months after the date on which the reply was filed or the appeal was taken;
(iii)act on an application within 4 months after the date of a decision by the Patent Trial and Appeal Board under section 134 or 135 or a decision by a Federal court under section 141, 145, or 146 in a case in which allowable claims remain in the application; or
(iv)issue a patent within 4 months after the date on which the issue fee was paid under section 151 and all outstanding requirements were satisfied,
(B)Subject to the limitations under paragraph (2), if the issue of an original patent is delayed due to the failure of the United States Patent and Trademark Office to issue a patent within 3 years after the actual filing date of the application under section 111(a) in the United States or, in the case of an international application, the date of commencement of the national stage under section 371 in the international application, not including—
(i)any time consumed by continued examination of the application requested by the applicant under section 132(b);
(ii)any time consumed by a proceeding under section 135(a), any time consumed by the imposition of an order under section 181, or any time consumed by appellate review by the Patent Trial and Appeal Board or by a Federal court; or
(iii)any delay in the processing of the application by the United States Patent and Trademark Office requested by the applicant except as permitted by paragraph (3)(C),
(C)Subject to the limitations under paragraph (2), if the issue of an original patent is delayed due to—
(i)a proceeding under section 135(a);
(ii)the imposition of an order under section 181; or
(iii)appellate review by the Patent Trial and Appeal Board or by a Federal court in a case in which the patent was issued under a decision in the review reversing an adverse determination of patentability,
(2)(A)To the extent that periods of delay attributable to grounds specified in paragraph (1) overlap, the period of any adjustment granted under this subsection shall not exceed the actual number of days the issuance of the patent was delayed.
(B)No patent the term of which has been disclaimed beyond a specified date may be adjusted under this section beyond the expiration date specified in the disclaimer.
(C)(i)The period of adjustment of the term of a patent under paragraph (1) shall be reduced by a period equal to the period of time during which the applicant failed to engage in reasonable efforts to conclude prosecution of the application.
(ii)With respect to adjustments to patent term made under the authority of paragraph (1)(B), an applicant shall be deemed to have failed to engage in reasonable efforts to conclude processing or examination of an application for the cumulative total of any periods of time in excess of 3 months that are taken to respond to a notice from the Office making any rejection, objection, argument, or other request, measuring such 3-month period from the date the notice was given or mailed to the applicant.
(iii)The Director shall prescribe regulations establishing the circumstances that constitute a failure of an applicant to engage in reasonable efforts to conclude processing or examination of an application.
(3)(A)The Director shall prescribe regulations establishing procedures for the application for and determination of patent term adjustments under this subsection.
(B)Under the procedures established under subparagraph (A), the Director shall—
(i)make a determination of the period of any patent term adjustment under this subsection, and shall transmit a notice of that determination no later than the date of issuance of the patent; and
(ii)provide the applicant one opportunity to request reconsideration of any patent term adjustment determination made by the Director.
(C)The Director shall reinstate all or part of the cumulative period of time of an adjustment under paragraph (2)(C) if the applicant, prior to the issuance of the patent, makes a showing that, in spite of all due care, the applicant was unable to respond within the 3-month period, but in no case shall more than three additional months for each such response beyond the original 3-month period be reinstated.
(D)The Director shall proceed to grant the patent after completion of the Director’s determination of a patent term adjustment under the procedures established under this subsection, notwithstanding any appeal taken by the applicant of such determination.
(4)(A)An applicant dissatisfied with the Director’s decision on the applicant’s request for reconsideration under paragraph (3)(B)(ii) shall have exclusive remedy by a civil action against the Director filed in the United States District Court for the Eastern District of Virginia within 180 days after the date of the Director’s decision on the applicant’s request for reconsideration. Chapter 7 of title 5 shall apply to such action. Any final judgment resulting in a change to the period of adjustment of the patent term shall be served on the Director, and the Director shall thereafter alter the term of the patent to reflect such change.
(B)The determination of a patent term adjustment under this subsection shall not be subject to appeal or challenge by a third party prior to the grant of the patent.
(c)(1)The term of a patent that is in force on or that results from an application filed before the date that is 6 months after the date of the enactment of the Uruguay Round Agreements Act shall be the greater of the 20-year term as provided in subsection (a), or 17 years from grant, subject to any terminal disclaimers.
(2)The remedies of section 283, 284, and 285 shall not apply to acts which—
(A)were commenced or for which substantial investment was made before the date that is 6 months after the date of the enactment of the Uruguay Round Agreements Act; and
(B)became infringing by reason of paragraph (1).
(3)The acts referred to in paragraph (2) may be continued only upon the payment of an equitable remuneration to the patentee that is determined in an action brought under chapter 28 and chapter 29 (other than those provisions excluded by paragraph (2)).
(d)(1)In addition to other rights provided by this section, a patent shall include the right to obtain a reasonable royalty from any person who, during the period beginning on the date of publication of the application for such patent under section 122(b), or in the case of an international application filed under the treaty defined in section 351(a) designating the United States under Article 21(2)(a) of such treaty or an international design application filed under the treaty defined in section 381(a)(1) designating the United States under Article 5 of such treaty, the date of publication of the application, and ending on the date the patent is issued—
(A)(i)makes, uses, offers for sale, or sells in the United States the invention as claimed in the published patent application or imports such an invention into the United States; or
(ii)if the invention as claimed in the published patent application is a process, uses, offers for sale, or sells in the United States or imports into the United States products made by that process as claimed in the published patent application; and
(B)had actual notice of the published patent application and, in a case in which the right arising under this paragraph is based upon an international application designating the United States that is published in a language other than English, had a translation of the international application into the English language.
(2)The right under paragraph (1) to obtain a reasonable royalty shall not be available under this subsection unless the invention as claimed in the patent is substantially identical to the invention as claimed in the published patent application.
(3)The right under paragraph (1) to obtain a reasonable royalty shall be available only in an action brought not later than 6 years after the patent is issued. The right under paragraph (1) to obtain a reasonable royalty shall not be affected by the duration of the period described in paragraph (1).
(4)(A)The right under paragraph (1) to obtain a reasonable royalty based upon the publication under the treaty defined in section 351(a) of an international application designating the United States shall commence on the date of publication under the treaty of the international application, or, if the publication under the treaty of the international application is in a language other than English, on the date on which the Patent and Trademark Office receives a translation of the publication in the English language.
(B)The Director may require the applicant to provide a copy of the international application and a translation thereof.
Legislative History
Notes & Related Subsidiaries
Historical and Revision Notes
Based on Title 35, U.S.C., 1946 ed., § 40 (R.S. 4884, amended May 23, 1930, ch. 312, § 1, 46 Stat. 376). The reference to plants is omitted for inclusion in another section and the reference to the title is shortened since the title is of no legal significance. The wording of the granting clause is changed to “the right to exclude others from making, using, or selling”, following language used by the Supreme Court, to render the meaning clearer. “United States” is defined in section 100.
Editorial Notes
References in Text
The date of the enactment of the Uruguay Round Agreements Act, referred to in subsec. (c)(1), (2)(A), is the date of enactment of Pub. L. 103–465, which was approved Dec. 8, 1994.
Amendments
2013—Subsec. (b)(1)(A)(i)(II). Pub. L. 112–274, § 1(h)(1)(A), which directed substitution of “of commencement of the national stage under section 371 in an international application” for “on which an international application fulfilled the requirements of section 371 of this title”, was executed by making the substitution for “on which an international application fulfilled the requirements of section 371”, to reflect the probable intent of Congress and the intervening amendment by Pub. L. 112–29, § 20(j). See 2011 Amendment note below. Subsec. (b)(1)(B). Pub. L. 112–274, § 1(h)(1)(B), substituted “the application under section 111(a) in the United States or, in the case of an international application, the date of commencement of the national stage under section 371 in the international application” for “the application in the United States” in introductory provisions. Subsec. (b)(3)(B)(i). Pub. L. 112–274, § 1(h)(2), substituted “no later than the date of issuance of the patent” for “with the written notice of allowance of the application under section 151”. Subsec. (b)(4)(A). Pub. L. 112–274, § 1(h)(3), substituted “the Director’s decision on the applicant’s request for reconsideration under paragraph (3)(B)(ii) shall have exclusive remedy” for “a determination made by the Director under paragraph (3) shall have remedy” and “the date of the Director’s decision on the applicant’s request for reconsideration” for “the grant of the patent”. 2012—Subsec. (a)(2). Pub. L. 112–211, § 102(6)(A)(i), substituted “section 120, 121, 365(c), or 386(c)” for “section 120, 121, or 365(c)”. Subsec. (a)(3). Pub. L. 112–211, § 102(6)(A)(ii), substituted “section 119, 365(a), 365(b), 386(a), or 386(b)” for “section 119, 365(a), or 365(b)”. Subsec. (d)(1). Pub. L. 112–211, § 102(6)(B), inserted “or an international design application filed under the treaty defined in section 381(a)(1) designating the United States under Article 5 of such treaty” after “Article 21(2)(a) of such treaty” in introductory provisions. 2011—Subsec. (a)(2). Pub. L. 112–29, § 20(j), struck out “of this title” after “365(c)”. Subsec. (a)(3). Pub. L. 112–29, § 20(j), struck out “of this title” after “365(b)”. Subsec. (b)(1)(A)(i). Pub. L. 112–29, § 20(j), in introductory provisions, struck out “of this title” after “132” and after “151”. Subsec. (b)(1)(A)(i)(I). Pub. L. 112–29, § 20(j), struck out “of this title” after “111(a)”. Subsec. (b)(1)(A)(i)(II). Pub. L. 112–29, § 20(j), struck out “of this title” after “371”. Subsec. (b)(1)(A)(iii), (B)(ii). Pub. L. 112–29, § 3(j)(1), substituted “Patent Trial and Appeal Board” for “Board of Patent Appeals and Interferences”. Subsec. (b)(1)(C). Pub. L. 112–29, § 3(j)(2)(B), amended heading generally. Prior to amendment, heading read as follows: “Guarantee or adjustments for delays due to interferences, secrecy orders, and appeals”. Subsec. (b)(1)(C)(iii). Pub. L. 112–29, § 3(j)(1), substituted “Patent Trial and Appeal Board” for “Board of Patent Appeals and Interferences”. Subsec. (b)(4)(A). Pub. L. 112–29, § 9(a), substituted “United States District Court for the Eastern District of Virginia” for “United States District Court for the District of Columbia”. Subsec. (c)(2). Pub. L. 112–29, § 20(j), in introductory provisions, struck out “of this title” after “285”. Subsec. (c)(3). Pub. L. 112–29, § 20(j), struck out “of this title” after “excluded by paragraph (2))”. 2002—Subsec. (b)(4)(A). Pub. L. 107–273, § 13206(a)(8), struck out “, United States Code,” after “title 5”. Subsec. (d)(4)(A). Pub. L. 107–273, § 13204, amended subsec. (d)(4)(A) as in effect on Nov. 29, 2000, by substituting “the date of” for “the date on which the Patent and Trademark Office receives a copy of the” and “publication in the English language” for “international application in the English language”. 1999—Pub. L. 106–113, § 1000(a)(9) [title IV, § 4504(1)], inserted “; provisional rights” after “patent” in section catchline. Subsec. (b). Pub. L. 106–113, § 1000(a)(9) [title IV, § 4402(a)], amended heading and text of subsec. (b) generally. Prior to amendment, text provided for interference delay or secrecy orders, extensions for appellate review, a limitations period, and a maximum period of 5 years duration for all extensions. Subsec. (d). Pub. L. 106–113, § 1000(a)(9) [title IV, § 4504(2)], added subsec. (d). 1996—Subsec. (c)(2). Pub. L. 104–295 substituted “acts” for “Acts” in introductory provisions. 1994—Pub. L. 103–465 amended section catchline and text generally. Prior to amendment, text read as follows: “Every patent shall contain a
Short Title
of the invention and a grant to the patentee, his heirs or assigns, for the term of seventeen years, subject to the payment of fees as provided for in this title, of the right to exclude others from making, using, or selling the invention throughout the United States and, if the invention is a process, of the right to exclude others from using or selling throughout the United States, or importing into the United States, products made by that process,, referring to the specification for the particulars thereof. A copy of the specification and drawings shall be annexed to the patent and be a part thereof.” 1988—Pub. L. 100–418 inserted “and, if the invention is a process, of the right to exclude others from using or selling throughout the United States, or importing into the United States, products made by that process,” after “United States”. 1980—Pub. L. 96–517 substituted “payment of fees” for “payment of issue fees”. 1965—Pub. L. 89–83 added “subject to the payment of issue fees as provided for in this title”.
Statutory Notes and Related Subsidiaries
Effective Date
of 2013 AmendmentAmendment by Pub. L. 112–274 effective Jan. 14, 2013, and applicable to proceedings commenced on or after such date, see section 1(n) of Pub. L. 112–274, set out as a note under section 5 of this title.
Effective Date
of 2012 AmendmentAmendment by Pub. L. 112–211 effective on the later of the date that is 1 year after Dec. 18, 2012, or the date that the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs enters into force with respect to the United States (May 13, 2015), and applicable only to certain applications filed on and after that
Effective Date
and patents issuing thereon, see section 103 of Pub. L. 112–211, set out as a note under section 100 of this title.
Effective Date
of 2011 AmendmentAmendment by section 3(j)(1), (2)(B) of Pub. L. 112–29 effective upon the expiration of the 18-month period beginning on Sept. 16, 2011, and applicable to certain applications for patent and any patents issuing thereon, see section 3(n) of Pub. L. 112–29, set out as an
Effective Date
of 2011 Amendment;
Savings Provision
s note under section 100 of this title. Amendment by section 9(a) of Pub. L. 112–29 effective Sept. 16, 2011, and applicable to any civil action commenced on or after that date, see section 9(b) of Pub. L. 112–29, set out as a note under section 1071 of Title 15, Commerce and Trade. Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that
Effective Date
, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title.
Effective Date
of 1999 Amendment Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4405(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–560, provided that: “The
Amendments
made by section 4402 and 4404 [amending this section, section 156 and 282 of this title, and section 1295 of Title 28, Judiciary and Judicial Procedure] shall take effect on the date that is 6 months after the date of the enactment of this Act [Nov. 29, 1999] and, except for a design patent application filed under chapter 16 of title 35, United States Code, shall apply to any application filed on or after the date that is 6 months after the date of the enactment of this Act.” Amendment by section 1000(a)(9) [title IV, § 4504] of Pub. L. 106–113 effective Nov. 29, 2000, applicable only to applications (including international applications designating the United States) filed on or after that date, and additionally applicable to any pending application filed before Nov. 29, 2000, if such pending application is published pursuant to a request of the applicant under such procedures as may be established by the Director, see section 1000(a)(9) [title IV, § 4508] of Pub. L. 106–113, as amended, set out as a note under section 10 of this title.
Effective Date
of 1994 Amendment Pub. L. 103–465, title V, § 534, Dec. 8, 1994, 108 Stat. 4990, provided that: “(a) In General.—Subject to subsection (b), the
Amendments
made by this subtitle [subtitle C (§§ 531–534) of title V of Pub. L. 103–465, amending this section and section 41, 104, 111, 119, 156, 172, 173, 252, 262, 271, 272, 287, 292, 295, 307, 365, and 373 of this title] take effect on the date that is one year after the date on which the WTO Agreement enters into force with respect to the United States [Jan. 1, 1995]. “(b) Patent Applications.—“(1) In general.—Subject to paragraph (2), the
Amendments
made by section 532 [amending this section and section 41, 111, 119, 156, 172, 173, 365, and 373 of this title] take effect on the date that is 6 months after the date of the enactment of this Act [Dec. 8, 1994] and shall apply to all patent applications filed in the United States on or after the
Effective Date
. “(2) section 154(a)(1).—section 154(a)(1) of title 35, United States Code, as amended by section 532(a)(1) of this Act, shall take effect on the
Effective Date
described in subsection (a). “(3) Earliest filing.—The term of a patent granted on an application that is filed on or after the
Effective Date
described in subsection (a) and that contains a specific reference to an earlier application filed under the provisions of section 120, 121, or 365(c) of title 35, United States Code, shall be measured from the filing date of the earliest filed application.”
Effective Date
of 1988 AmendmentAmendment by Pub. L. 100–418 effective 6 months after Aug. 23, 1988, and, subject to enumerated exceptions, applicable only with respect to products made or imported after such
Effective Date
, see section 9006 of Pub. L. 100–418, set out as a note under section 271 of this title.
Effective Date
of 1980 AmendmentAmendment by Pub. L. 96–517 effective Dec. 12, 1980, see section 8(a) of Pub. L. 96–517, set out as a note under section 41 of this title.
Effective Date
of 1965 AmendmentAmendment by Pub. L. 89–83 effective three months after July 24, 1965, see section 7(a) of Pub. L. 89–83, set out as a note under section 41 of this title.
Regulations
Pub. L. 103–465, title V, § 532(a)(2), Dec. 8, 1994, 108 Stat. 4985, authorized the Commissioner of Patents and Trademarks to prescribe
Regulations
for further limited reexamination of applications pending 2 years or longer and for examination of more than 1 independent and distinct invention in applications pending 3 years or longer, as of the
Effective Date
of section 154(a)(2) of this title, and to establish appropriate related fees.
Reference
Citations & Metadata
Citation
35 U.S.C. § 154
Title 35 — Patents
Last Updated
Apr 6, 2026
Release point: 119-73