A Major Change in Patent Term Adjustment Calculus on Appeal to the Federal Circuit: Steps Applicants May Need to Consider to Preserve Rights

On November 1, 2012, Judge T.S. Ellis of the U.S. District Court for the Eastern District of Virginia decided Exelixis, Inc. v. Kappos (Case No. 1:12-cv-00096). Ruling against the U.S. Patent & Trademark Office (USPTO), Judge Ellis granted summary judgment to the Patentee and held that a Request for Continued Examination (RCE) filed more than three years after the effective filing date of a patent application has no impact on Patent Term Adjustment (PTA). (See November 2012 IP Buzz). Since the Exelixis decision, there have been a few important developments.

On December 31, 2012, the USPTO filed its notice of appeal in Exelixis. Given the traditional pace of the Federal Circuit, we expect the Federal Circuit will decide the appeal around the end of 2013.

Please see full article below for more information.

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