The Federal Circuit recently rejected the USPTO’s method of calculating patent term adjustments (“PTA”) under 35 U.S.C. 154(b) in Wyeth v. Kappos No. 2009-1120 (January 7, 2010). An issued patent has a term of 20 years from the filing date of the patent application, and then it expires. 35 U.S.C. 154(b) provides for adjustment of that patent term to extend the term due to USPTO delay in examining the application, which may be decreased due to applicant delay in prosecuting the application. The Federal Circuit just rejected the USPTO’s interpretation of 35 U.S.C. 154(b)(2)(A) regarding “overlap” calculations. Accordingly, the USPTO is in the process of changing its PTA calculations. Please note that an applicant has 180 days after patent issuance to seek review of the USPTO’s PTA calculation. However, patentees should consider whether they are eligible for patent term recalculation based upon this decision.

See also Dennis Crouch Patently-O posting: Wyeth v. Kappos: Appellate Panel Confirms that PTO Is Miscalculating (Undercalculating) Delays in Prosecution and the Corresponding Patent Term Adjustment