How can the impact of suspension on patent term adjustment be minimized?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

To minimize the impact of suspension on patent term adjustment during an interference proceeding, the MPEP 2307.03 suggests considering certain steps. Specifically, it states:

“Steps should be considered to minimize the effect of any patent term adjustment that would result from the suspension.”

One strategy outlined in the MPEP is to use restriction requirements:

“For instance, the examiner could require restriction in accordance with 35 U.S.C. 121, of the application to only the claims that do not interfere so that they can be issued.”

This approach allows non-interfering claims to proceed to issuance, potentially preserving patent term for those claims. The applicant can then file a divisional application for the interfering claims, which may be suspended without affecting the term of the issued patent.