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12:00 AM
 | 
Jan 25, 2010
 |  BioCentury  |  Politics, Policy & Law

Terms of Endearment

TheU.S. Patent and Trademark Office's decision not to appeal a Jan. 7 Federal Circuit ruling paves the way for holders of new patents to request an increase in patent term adjustments due to delays in PTO reviews. Whether holders of older patents will be eligible for the longer extensions made possible under Wyeth v. Kappos will likely be determined by another suit seeking equitable relief.

The first of these cases, brought by The General Hospital Corp., is awaiting a court date in the U.S. District Court for the District of Columbia.

In Wyeth v. Kappos, the U.S. Court of Appeals for the Federal Circuit (CAFC) considered the PTO's interpretation of the 1999 Patent Term Guarantee Act, which provides for patent term adjustments (PTAs) to compensate for delays in prosecution.

Under the law, a patent is given one extra day of validity for each day of delay in prosecution caused by the PTO, minus delays caused by the applicant. The law specifies three types of PTO delays, of which two were at issue in Wyeth.

Delays under subsection 154(b)(1)(A), often called type A delays, are caused when the PTO misses intermediate deadlines in prosecution, such as issuing a first response within 14 months of an application's filing date.

Delays under subsection 154(b)(1)(B), or type B delays, accrue when the PTO fails to issue a patent within three years of the initial filing.

Type C delays, which were not a matter in the Wyeth decision, include delays due to interferences, secrecy orders, and appeals.

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