emphasis addedWyeth v. Kappos
On January 7, 2010, the Federal Circuit issued a decision in Wyeth v. Kappos, No. 2009-1120, regarding the calculation of patent term adjustments under 35 U.S.C. 154(b). The Federal Circuit’s decision rejects the USPTO’s interpretation of the “overlap” limitation in Section 154(b)(2)(A).
- The Solicitor General will determine whether to seek further review of this decision.
- Pending that determination, the USPTO is in the process of changing the manner it will calculate patent term adjustments under Section 154(b) to conform with the Federal Circuit’s decision.
- Applicants and Patent Owners dissatisfied with a patent term adjustment determination by the agency are reminded of the requirement to seek review of that determination within 180 days of patent issuance and the time periods set in the implementing regulations. See 35 USC 154(b)(4) and 37 CFR 1.705.
http://www.uspto.gov/patents/announce/wyeth_v_kappos.jsp
Note that the Justice department will determine whether to appeal.
*** Also, the USPTO reminded Patent owners that you have 180 days after issue to seek a review to see if you are entitled to additional PTE.
Today, about 50% of US patent granted are eligible for patent term extension (PTE). However, most patent applications expire before their 20 year life for non-payment of maintenance fees. In certain industries, such as pharmaceutical, patents are very valuable at the end of their life and days can mean millions of dollars of revenue.
Link to Wyeth decision.
www.cafc.uscourts.gov/opinions/09-1120.pdf