District court's decision could lead to a minimum
of 17 years of post-issuance patent terms for most standard
patents.
On November 1, Judge T. S. Ellis, III, of the U.S. District
Court for the Eastern District of Virginia ruled in Exelixis,
Inc. v. Kappos1 that the U.S. Patent and Trademark
Office (USPTO) has been undercalculating patent term adjustments
(PTAs) due to a misinterpretation of the "plain and
unambiguous" language of the PTA statute, 35 U.S.C. §
154(b)(1)(B).
The court specifically determined that a request for continued
examination (RCE) filed after the first three years of prosecution
should not impact the amount of PTA provided. This may lead to the
availability of additional PTA for many patents. Accordingly, all
patent owners that could benefit from PTA should review their
portfolios to evaluate the impact of this decision.
