In 1997 Catherine Hettinger received a U.S. patent for a “Spinning Toy” (Patent No. 5,591,062) now commonly referred to as the “Fidget Spinner.”  The patent expired in 2005 when maintenance fees were not paid to keep the patent from expiring prematurely.

The palm-sized toy includes a ball bearing in a three-sectioned plastic device which can then be spun round with a flick of a finger.  Fidget Spinners have become a recent toy sensation with sales worldwide into the tens of millions.  Without any patent rights, the inventor cannot exclude others from profiting from making and selling similar toys as her original invention.

In the United States, maintenance fees must be paid on three separate occasions to keep a patent from expiring prematurely.  In particular, a patent owner may pay maintenance fees without a surcharge (or late fee) at 3 to 3.5 years, 7 to 7.5 years, and 11 to 11.5 years after the date of issue of a patent and the fees cannot be paid earlier than the allotted window of time.  Patent owners may also pay maintenance fees with a surcharge during the “grace periods” at 3.5 to 4 years, 7.5 to 8 years, and 11.5 to 12 years after the date of issue of a patent.

Although many inventors make the decision to not pay maintenance fees for inventions that have not had commercial success (and never do), this story shows what can happen when an invention becomes commercially successful years after a maintenance fee payment is missed.  Inventors lacking funds may want to try and borrow the money to pay maintenance fees to avoid this dilemma.  Since maintenance fees range from hundreds of dollars to a few thousand dollars, inventors may be able to borrow the money or sell a portion of the patented invention as a means to keep the invention from expiring to the public before the end of its 20 year term.

Article by Scott Compton, J.D.  Scott is a patent attorney working with Buche & Associates, P.C., a firm that specializes in handling of intellectual property matters, including IP portfolio management.

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