USPTO Finalizes Patent Term Adjustment Rules And Is Accepting Requests, At No-Fee, To Recalculate PTA

Background

The basic term of a utility or plant patent under current U.S. patent law is twenty years, calculated from the patent application filing date. Any delay by the U.S. Patent and Trademark Office, USPTO, in the processing of a patent application, reduces the effective duration of the applicant's patent term after issue of the patent. This could result in the loss of many years in the effective term after patent issue.

To address such delays, U.S. patent law provides for "Patent Term Adjustment" (PTA), which is added to the statutory twenty-year patent term to account for delays in the patent examination process, and which provides a "Patent Term Guarantee". The Patent Term Guarantee provides three main bases for adjusting the patent term:

"A Delay": accrual of time as a result of the USPTO not being able to meet time periods within which it has to take various actions. Principally, the first office action must be issued within 14 months from the filing date. "B Delay": accrual of time associated with the USPTO failing to meet the 3-year application pendency guarantee, from the filing date or from the date an international application enters the U.S. national phase. "C Delay": accrual of time associated with delays in derivation proceedings, secrecy orders and appeals. The PTA awarded is the total of the A Delay, B Delay and C Delay, less any overlapping days and...