Federal Circuit Modifies The Method For Calculating B-Delay In Patent Term Adjustment

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued on Jan. 15, 2014, its decision modifying the method for calculating Patent Term Adjustment (PTA) for an application that included a Request for Continued Examination (RCE). In the case Novartis AG v. Lee, No. 2013-1160, -1179 (Fed. Cir. 2014), the CAFC determined that the amount of "B-delay" includes post-allowance time, i.e., the time between allowance and issuance, for an application whose prosecution includes a RCE filing.

In construing 35 U.S.C. § 154(b)(1)(B), the court explained that B-delay occurs if the issue of a patent is "delayed due to the failure of the U.S. Patent and Trademark Office (USPTO) to issue a patent within 3 years after the actual filing date of the application in the United States." Further, the amount of B-delay, however, does not include "any time consumed by the continued examination of application requested by the applicant under section 132(b)." And,