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ARTICLE · 01 APRIL 2014

Delayed Restriction Requirement Does Not Result In Patent Term Adjustment For Divisional Application

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In Mohsenzadeh v. Lee, the U.S. District Court for the Eastern District of Virginia held that the PTA statute does not provide PTA to a divisional application.

United StatesIntellectual Property
Courtenay Brinckerhoff
Courtenay Brinckerhoff
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In Mohsenzadeh v. Lee (decided March 19, 2014), the U.S. District Court for the Eastern District of Virginia held that the Patent Term Adjustment (PTA) statute does not provide PTA to a divisional application when the USPTO takes longer than 14 months to issue a Restriction Requirement in the parent application. While this decision is not surprising, it is a reminder that applicants may have to choose between the protections offered to divisional applications by 35 USC § 121 and the possible impact on enforceable patent term of filing related applications in series rather than in parallel.

The Patents at Issue

The patents at issue are U.S. Patent 8,352,362 and U.S. Patent 8,401,963, directed to methods of transferring resources from one entity to another, and related methods. These two patents stem from divisional applications of U.S. Patent 7,742,984.

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