District Court Decision Opens Door to Additional Patent Term Adjustment

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In Exelixis, Inc. v. Kappos, a federal district court overturned the USPTO’s interpretation of the patent term adjustment (“PTA”) statute, finding that a Request for Continued Examination (“RCE”) filed after three years from the patent application filing date does not impact PTA. The decision, if not reversed on appeal, could significantly extend the term of many patents. Although it is likely that the USPTO will appeal the decision and the finality of the district court’s holding remains uncertain, holders of patents should review their patents and consider taking relevant action in view of this decision.

PATENT TERM ADJUSTMENT STATUTE AND USPTO INTERPRETATION -

35 U.S.C. § 154 establishes that the term of a U.S. patent expires 20 years from the earliest effective non-provisional U.S. filing date of the patent application. To compensate for USPTO delays during the patent examination process, Congress enacted 35 U.S.C. § 154(b)(1), which provides “guarantees” against three different types of delays...

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