How does a successful appeal affect patent term adjustment?
A successful appeal can result in additional patent term adjustment (PTA). According to MPEP 2731:
“37 CFR 1.703(e) pertains to the provisions of 35 U.S.C. 154(b)(1)(C)(iii) and indicates that the period of adjustment under 37 CFR 1.702(e) is the sum of the number of days, if any, in the period beginning on the date on which a jurisdiction over the application passes to the Patent Trial and Appeal Board under 37 CFR 41.35(a) or 37 CFR 41.31 if the notice of allowance was issued prior to September 17, 2012, and ending on the date of a final decision in favor of the applicant by the Board or by a federal court in an appeal under 35 U.S.C. 141 or a civil action under 35 U.S.C. 145.“
This means that the time spent in the appeal process, from when the Board takes jurisdiction until a favorable decision is reached (either by the Board or a federal court), can be added to the patent term. This adjustment compensates the applicant for the delay in patent issuance caused by the need to appeal an examiner’s decision.
It’s important to note that this adjustment only applies to successful appeals. If the appeal is unsuccessful, this particular adjustment would not apply, although other forms of PTA might still be available depending on the circumstances of the application’s prosecution.
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