by Daniel Davidson

These days it’s all about that little extra.  Why should it be any different when it comes to the United States Patent and Trademark Office?  It was recently decided in Wyeth v. Kappos, No. 2009-1120 (Fed. Cir. Jan. 7, 2010) that the USPTO’s calculation of the Patent Term Adjustments (PTA) took that little extra away from patentees.  The PTA is the amount of additional time allotted to a patent when certain deadlines are not met during the examination process.

The deadlines are laid out in two different subsections within Title 35 of the United State Code:  § 154(b)(1)(A) and § 154(b)(1)(B).  The deadlines included in §154 (b)(1)(A) include an issuance of an Office Action within 14 months of the date the patent application was filed, 4 months to respond to a reply, 4 months to act on an application after a decision by the Board of Patent Appeals and Interferences, and 4 months to issue a patent from the date the issue fee was paid.  Anything longer than that is an “A Delay.”  Pursuant to §154 (b)(1)(B), the USPTO must issue a patent within 3 years of the application of the patent (provided, of course, that the subject matter meets the other requirements for patentability).  Anything longer than that is a “B Delay,” according to the Wyeth Opinion.  Should any of these provisions occur, the patentee is entitled to an extension to the term of their patent until the provision is satisfied.

(more…)