patent term : CAFC Alert

Latest Developments in Calculating Patent Term Adjustment (PTA) from the District Courts

Bernadette McGann | November 21, 2012

Exelixis, Inc. v. Kappos

Decided  November 1, 2012

U.S. District Court for the Eastern District of Virginia

University of Massachusetts v. Kappos

Decided  November 9, 2012

U.S. District Court for the District of Colombia


This week, rather than discuss a CAFC case, we take a look at two important District Court cases dealing with Patent Term Adjustment (PTA).  According to Exelixis, under 35 U.S.C. §154(b)(1)(B), the filing of a Request for Continued Examination (RCE) has no impact on PTA determinations when filed after the three year examination guarantee has passed.  Additionally, according to University of Massachusetts, under 35 U.S.C. §154(b)(1)(A), a fundamentally flawed Office Action will count towards calculating an A delay.

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CAFC holds all the claims of a patent have the same expiration date, whether the claims are drawn to the product subject to patent term extension or not

Lee Wright | April 11, 2012

Genetics Institute, LLC v. Novartis Vaccines and Diagnostics, Inc.

August 23, 2011

Panel: Lourie, Plager and Dyk.  Opinion by Judge Lourie.  Concurrence-in-part and dissent-in part by Dyk.


Today, we bring you the second in a series of three articles regarding an important case from last year.   For part 1, click here.  This article discusses the following question:

Question: Where a patent has been granted an extension of term due to regulatory review, is there a different expiration date for the claims that were the subject to the regulatory review and the claims that do not claim the approved product?

Answer:  The expiration date is not determined on a claim by claim basis.

A patent, and therefore all of the claims in the patent, have the same expiration date, which is the expiration date as extended by patent term extension.

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