How is the enforceability period of a patent determined for supplemental examination purposes?

The enforceability period for supplemental examination purposes is generally determined by adding six years to the patent’s expiration date. However, this period can be extended if litigation is pending. The MPEP 2808 states:

“Specifically, if litigation is instituted within the statute of limitations (see 35 U.S.C. 286), requests for supplemental examination may be filed after the statute of limitations has expired, as long as the patent is still enforceable against someone.”

This means that the enforceability period can extend beyond the standard six-year post-expiration period if there is ongoing litigation.

To learn more:

Topics: MPEP 2800 - Supplemental Examination, MPEP 2808 - Time For Requesting Supplemental Examination, Patent Law, Patent Procedure
Tags: patent enforceability, Patent Litigation, Statute Of Limitations, supplemental examination