How do secrecy orders affect patent term adjustment?

Secrecy orders can have a significant impact on patent term adjustment (PTA). According to MPEP 2731, there are several ways in which a secrecy order can affect PTA:

“37 CFR 1.703(d) pertains to the provisions of 35 U.S.C. 154(b)(1)(C)(ii) and indicates that the period of adjustment under 37 CFR 1.702(d) is the sum of the following periods (to the extent that such periods are not overlapping):

1. The number of days, if any, the application was maintained in a sealed condition under 35 U.S.C. 181;
2. The number of days, if any, in the period beginning on the date of mailing of an examiner’s answer under 37 CFR 41.39 in the application under secrecy order and ending on the date the secrecy order was removed;
3. The number of days, if any, in the period beginning on the date applicant was notified that an interference or derivation proceeding under 35 U.S.C. 135(a) would be instituted but for the secrecy order and ending on the date the secrecy order was removed; and
4. The number of days, if any, in the period beginning on the date of notification under 37 CFR 5.3(c) and ending on the date of mailing of the notice of allowance under 35 U.S.C. 151 and 37 CFR 1.311.“

   Essentially, the time during which an application is under a secrecy order can be added to the patent term. This adjustment compensates the applicant for the delay in patent issuance caused by the secrecy order.

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   • secrecy orders
   • patent term adjustment
   • PTA calculation
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