Obstacles to Correcting Patent Term Adjustments


With the much anticipated opinion of Wyeth v. Kappos, No. 2009-1120, 2010 WL 27184 (Fed. Cir. Jan. 7, 2010), the Federal Circuit overturned one aspect of the PTO’s methodology of calculating the amount of a patent term adjustment (PTA) an applicant is due under the Patent Term Guarantees of 35 U.S.C. § 154(b). While Wyeth will apply to calculating PTAs going forward, procedural obstacles may foreclose patentees from obtaining a correction of prior PTA determinations for issued patents or patent applications in which the issue fee has already been paid.

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Robert Matthews, Jr.
Matthews Patent-Law Consulting

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