USPTO challenging Court finding of patent term adjustment undercalculation
By Robert Finn | Wednesday, January 23, 2013
US patent law provides a patent term adjustment (PTA) to compensate patent owners where there have been excessive delays by the United States Patent and Trademark Office (USPTO) in the prosecution of their patent applications. The USPTO calculates the number of days of accrued PTA and adds it to the basic patent term.
Recently, in its decision in Exelixis, Inc. v. Kappos, which is discussed here, a US District Court held that the USPTO erred in taking the position that the filing of an RCE on an application that has been pending for more than three years would halt the accumulation of PTA. As a result of that decision, several petitions have been filed at the USPTO, in respect of affected applications, to have PTA recalculated (and thus increased).
The USPTO is appealing against the decision. The outcome of the appeal will be reported once the appeal decision issues.
This legal briefing was written in 2013 and may not reflect the latest legal developments. We encourage you to contact us for up-to-date advice for your particular circumstances.