Tuesday, 2 February 2010
INTERIM PROCEDURE FOR REQUESTING PATENT TERM ADJUSTMENT RECALCULATION
In view of the recent decision in Wyeth v. Kappos, No. 2009-1120 (Fed. Cir. Jan 7, 2010), the U.S. PTO is currently modifying the computer program which is used to calculate patent term adjustment. In the meantime, the U.S. PTO has announced an interim procedure for requesting recalculation of patent term adjustment to correct errors in the overlap-calculation as discussed in Wyeth. Please see our Notice of January 15, 2010 for a discussion of the Wyeth decision.
According to the interim procedure, the U.S. PTO will recalculate the patent term adjustment, without a fee, for (1) patents issued prior to March 2, 2010, (2) where the sole purpose for requesting reconsideration is correction of errors discussed in Wyeth, and (3) where the request for reconsideration is filed no later than 180 days after the patent has issued. (Patents issued on August 11, 2009 reach the 180 day mark on February 7, 2010.)
The form for filing a Request for Recalculation of Patent Term Adjustment in View of Wyeth (PTO/SB/131) is available on the U.S. PTO website at http://www.uspto.gov/forms/sb0131.pdf.
The interim procedure is intended as an alternative to the petition and fee required by 37 CFR 1.705(d). For patents issued after March 2, 2010, the U.S. PTO expects their calculation to be consistent with the Wyeth decision. Accordingly, patentees seeking revised patent term adjustment in patents issued on or after March 2, 2010 must file a Request for Reconsideration under 37 CFR 1.705(d), within two months of the date the patent issued.
Please let us know if you wish us to file requests in any of your patents.
Sincerely,
Wenderoth, Lind & Ponack, L.L.P.
