USPTO Interim Procedure for Patent Term Adjustment Recalculation
The U.S. Patent and Trademark Office expects to complete by March 2, 2010, the software modification necessary to comply with the U.S. Court of Appeals for the Federal Circuit's recent decision in Wyeth v. Kappos regarding the overlapping delay provision of 35 USC 154(b)(2)(A). In the meantime, the USPTO will be processing recalculation requests under an interim procedure that is available to a patentee whose patent issues prior to March 2, 2010, and who request it no later than 180 days after the issue date. This procedure is available only for alleged errors in calculation that are specifically identified in Wyeth. A copy of the notice submitted to the Federal Register for publication and the form for patentees to use in requesting a recalculation of patent term is on the USPTO Web site at http://www.uspto.gov/patents/announce/pta_wyeth.pdf.
An applicant is entitled, subject to certain conditions and limitations, to patent term adjustment if (1) the USPTO fails to take certain actions during the examination and issue process within specified time frames; (2) if the USPTO fails to issue a patent within three years of the actual filing date of the application; and (3) for delays due to interference, secrecy order, or successful appellate review.
The guidance does not address patents that have issued more than 180 days ago, nor has the USPTO provided any indication that it will address this issue in the future.