In Pfizer v. Lee, the Court of Appeals for the Federal Circuit held that a “defective” restriction requirement was sufficient to stop the period of patent term adjustment granted when the U.S. Patent and Trademark Office fails to issue a first action within 14 months from the date an application is filed. Case No. 2015-1265, decided January 22, 2016.
The Defective Restriction Requirement -
35 U.S.C. § 154 specifies certain patent term guarantees which, if not met, can serve as bases for a patent term adjustment (PTA). In particular, 35 U.S.C. § 154(b)(1)(A)(i) provides an applicant with a PTA if the U.S. Patent and Trademark Office (USPTO) fails “to provide at least one of the notifications under section 132 or a notice of allowance” no later than 14 months from the application filing date (also known as “A delay”). A notification under 35 U.S.C. § 132 includes rejections, objections and restriction requirements.
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