On April 1, 2013, the PTO revised the procedure for determining adjustments to a patent term because of a delay during prosecution of a patent application. The rules are effective immediately, but the PTO will accept comments through May 31, 2013, before making the rules final. The new rules, which are intended to make patent term extension determinations more efficient, address four main issues. First, instead of issuing two notices about the length of any patent term extension (one with the Notice of Allowance and another one with the issuance of the patent), the PTO will issue only one notice when the patent issues. Second, the patentee can request an extension of up to five months beyond the two months previously allowed to challenge the PTO’s term extension determination. Third, a patentee has 180 days after the PTO rules on any challenge to the PTO’s term determination to file suit in federal district court to contest the PTO’s ruling. Previously, a patentee was required to file suit within 180 days of patent issuance. As a result, patentees often filed suit in the district court before receiving a decision from the PTO on the patentee’s original challenge. The new rule obviates the need for such protective suits. Finally, the new rules establish that international patent applications filed in the U.S. pursuant to the Patent Cooperation Treaty will be treated the same as applications filed directly in the U.S. for purposes of determining term extensions.
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PTO revises rules for patent term adjustments
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