How do interference and derivation proceedings affect patent term adjustment?

Interference and derivation proceedings can impact patent term adjustment (PTA) in two ways, as outlined in MPEP 2731:

1. They can create a basis for PTA under 35 U.S.C. 154(b)(1)(C)(i)
2. They can reduce the amount of B-delay awarded under 35 U.S.C. 154(b)(1)(B)(ii)

Regarding the first point, MPEP 2731 states:

“37 CFR 1.703(c) pertains to the provisions of 35 U.S.C. 154(b)(1)(C)(i) and indicates that the period of adjustment under 37 CFR 1.702(c) is the sum of the following periods (to the extent that such periods are not overlapping): (1) the number of days, if any, in the period beginning on the date an interference or derivation proceeding was instituted to involve the application in the interference or derivation proceeding and ending on the date that the interference or derivation proceeding was terminated with respect to the application; and (2) the number of days, if any, in the period beginning on the date prosecution in the application was suspended by the Office due to interference or derivation proceedings under 35 U.S.C. 135(a) not involving the application and ending on the date of the termination of the suspension.“

This means that the time spent in interference or derivation proceedings can be added to the patent term. However, this same time period is also excluded from the three-year pendency calculation (B-delay), potentially reducing the overall PTA.

To learn more:

• interference proceedings
• derivation proceedings
• patent term adjustment
• PTA calculation
• patent prosecution