Request for Continued Examination : CAFC Alert

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

| 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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