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Court Decision Allows for Term Extension of Recently Issued Patents

February 2, 2010

A recent decision by the United States Court of Appeals for the Federal Circuit (Wyeth v. Kappos, No. 2009-1120 (Fed. Cir., Jan. 7, 2010)), may entitle patent owners to additional patent term extensions for their issued patents.

Under U.S. Patent Law, an applicant is entitled to adjustment to an issued patent’s term if there were delays attributable to the United States Patent and Trademark Office (PTO) during prosecution of the patent application. These delays fall within several defined bases for extension. Prior to Wyeth, where certain delays added to multiple bases of patent term adjustment, the PTO only granted extension according to one of the bases.

In the recent Wyeth decision, the Federal Circuit held that the PTO’s interpretation of the patent term adjustment rules was too strict, and that certain periods of PTO delay that overlap multiple bases should be added to the patent term adjustment under each of the bases for adjustment.

In view of this recent decision, the PTO has issued interim procedures under which patent owners may request reconsideration of patent term adjustment without a PTO fee. These procedures are applicable only to patents issued prior to March 2, 2010. Any request under the interim procedures must be made within 180 days of the day the patent was granted.

If you own any patents that were issued within the past six months, you may be entitled to additional term under the new interpretation of the patent term adjustment calculation.

If you would like to discuss a potential extension of patent term, please contact Jeffrey M. Weinick.

For More Information, Contact:

Jeffrey M. Weinick
Member of the Firm
(973) 530-2028