What is the three-year pendency adjustment (B-delay) in patent term adjustment?
The three-year pendency adjustment, also known as B-delay, is a component of patent term adjustment that compensates applicants when patent issuance is delayed beyond three years from the actual filing date. According to MPEP 2731:
“37 CFR 1.703(b) pertains to the provisions of 35 U.S.C. 154(b)(1)(B) and indicates that the period of adjustment under 37 CFR 1.702(b) is the number of days, if any, in the period beginning on the day after the date that is three years after the actual filing date of the application and ending on the date a patent was issued.“
However, certain periods are excluded from this calculation, including:
- Time consumed by continued examination (RCE)
- Time consumed by interference or derivation proceedings
- Time under secrecy orders
- Time of appellate review
It’s important to note that the calculation of B-delay has been subject to legal interpretation, as highlighted by the Federal Circuit’s decision in Novartis AG v. Lee, which clarified how time consumed by continued examination affects the adjustment.
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