Patents granted by the U.S. Patent and Trademark Office (USPTO) enjoy a period of exclusivity for the term of the patent, which runs from the issue date of the patent through 20 years from the earliest effective filing date of the application resulting in the patent. However, adjustments to the patent term may be available to correct for delays caused by the USPTO.
Recently, the Federal Circuit decided Wyeth v. Kappos in which the Court interpreted the statute 35 U.S.C. 154(b) regarding how “overlap” of delay periods affect the patent term adjustments. The Court’s decision is in contrast to the interpretation of the statute the USPTO has employed. Accordingly, the USPTO announced last week that they will change their calculation of patent term adjustments in view of this recent decision. See the notice for more information. Though the exact revisions to the calculations are still being determined, under this new interpretation, those patents which are eligible for patent term adjustment may be able to capture additional term extensions. Typically, a patentee may apply for patent term extension before paying the issue fee, or can file a claim with the court seeking review within 180 days of patent issuance. See 35 U.S.C. 154 and 37 CFR 1.705.
In view of this recent development, we take this opportunity to remind you that if you have a patent that is about to issue or has issued within 180 days, you may want to consider whether the proper patent term has been applied, or whether additional term adjustments may be appropriate.