Counting The Days: PTA Calculated From Date National Stage Commences

Addressing the patent term adjustment (PTA) calculations under 35 USC § 154(b)(1)(A)(i)(II), the US Court of Appeals for the Federal Circuit held that an applicant must comply with the "express request" provision of § 371(f) to commence the national stage, and that the national stage commences on the next workday if the 30-month date falls on a federal holiday. Actelion Pharm., Ltd. v. Matal, Case No. 17-1238 (Fed. Cir., Feb. 6, 2018) (Lourie, J). At issue in the appeal were four days of patent term extension.

Actelion filed an International Patent Application on July 16, 2009. On January 12, 2012, four days before the 30-month deadline for national phase entry, Actelion filed a US national stage patent application claiming priority to the International Patent Application. The US Patent and Trademark Office (PTO) issued the first office action on April 26, 2013, which was after the statutory deadline for action, leading to accrual of "A Delay" under 35 USC § 154.