How are overlapping delay periods handled in patent term adjustment calculations?
The handling of overlapping delay periods in patent term adjustment (PTA) calculations is addressed in MPEP 2731. The key principle is that the total PTA cannot exceed the actual number of days the issuance of the patent was delayed. Specifically:
“37 CFR 1.703(f) indicates that the adjustment will run from the expiration date of the patent as set forth in 35 U.S.C. 154(a)(2) and also indicates that to the extent that periods of delay attributable to the grounds specified in 37 CFR 1.702 overlap, the period of adjustment will not exceed the actual number of days the issuance of the patent was delayed (35 U.S.C. 154(b)(2)(A)).“
The interpretation of this rule has evolved due to court decisions. The MPEP notes:
“The United States Court of Appeals for the Federal Circuit, however, held that the USPTO’s earlier interpretation of 35 U.S.C. 154(b)(2)(A) was erroneous, and that periods of delay overlap under 35 U.S.C. 154(b)(2)(A) only if the periods which measure the amount of adjustment under 35 U.S.C. 154(b)(1) occur on the same calendar day. See Wyeth v. Kappos, 591 F.3d 1364, 93 USPQ2d 1257 (Fed. Cir. 2010).“
This means that different types of delays (e.g., A-delay and B-delay) can accumulate independently unless they occur on the same calendar day. This interpretation generally results in a more favorable PTA calculation for applicants compared to the USPTO’s previous interpretation.
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