Delay Attributed To Applicant Conduct Under PTO Rule For PTA Calculations Does Not Require That Delay Actually Occurred

Gilead Sciences, Inc., v. Michelle K. Lee, Deputy Director, USPTO, No. 2014-1159, 2015 U.S. App. LEXIS 2828 (Fed. Cir. Feb. 26, 2015)(Wallach, J.).  Click Here for a copy of the opinion.

Gilead appealed from a decision granting summary judgment to the PTO on its calculation of the Patent Term Adjustment (PTA) period for U.S. Pat. No. 8,148,374.  Gilead complained that the PTO improperly subtracted a period of applicant delay from the period of PTO delay when calculating the adjusted patent term.  Specifically, the appeal asked whether "filing a supplemental IDS after submitting a reply to a restriction requirement constitutes a failure to engage in reasonable efforts to conclude prosecution of the application" under § 154(b)(2)(C). The statute states, in part: