What you need to know: The Patent and Trademark Office has announced that they will reconsider the Patent Term Adjustment of recently issued patents in light of Wyeth v. Kappos.
What you need to do: Patent holders should contact their attorneys if they have patents issued within the last six months in order to assess whether those patents may have longer life available.
It’s time to contact your patent attorney to see whether your patents can last longer than you think. A recent Federal Circuit decision and a new Patent and Trademark Office policy may allow you to extend your patent term merely by filing a simple form.
The basic rule of patent term is that a patent remains in force (as long as maintenance fees are paid) for 20 years from its earliest US filing date. However, after patent applicants complained that delays inside the Patent and Trademark Office effectively shortened the term by eating into patent life, rules were established to adjust the expiry date and give back to a patent holder the effective term time that they lost due to PTO delays. A recent sampling of patents shows that average term adjustment is 14.5 months.
Moreover, a recent Federal Circuit decision (Wyeth v. Kappos, decided January 7) told the PTO that they were being too stingy in awarding Patent Term Adjustment. The Patent Term Adjustment provisions allow for two different ways to calculate PTO delays. The PTO viewed these as alternative provisions for overlapping time periods; the court said that they are additive.
The PTO has now indicated that, for patents issued in the past six months, it will recalculate your Patent Term Adjustment based on the Wyeth v. Kappos decision if you file a simple paper asking them to do so.