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ARTICLE · 01 APRIL 2010

How To Correct Patent Term Adjustment Following The "Wyeth" Decision

Nutter McClennen & Fish LLP
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In its January 2010 decision in "Wyeth v. Kappos", the Federal Circuit found that the United States Patent and Trademark Office (USPTO) had been miscalculating Patent Term Adjustment (PTA) for many applications, especially those that were pending for more than three years.

United StatesIntellectual Property
Nutter McClennen & Fish LLP'S Intellectual Property Practice Group
Nutter McClennen & Fish LLP'S Intellectual Property Practice Group
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Originally published March 15, 2010

In its January 2010 decision in Wyeth v. Kappos1, the Federal Circuit found that the United States Patent and Trademark Office (USPTO) had been miscalculating Patent Term Adjustment (PTA) for many applications, especially those that were pending for more than three years. In response to this decision, the USPTO announced an interim procedure for requesting PTA recalculation and initiated an overhaul of the computer system used to calculate PTA. This article briefly summarizes the procedures that applicants and patentees can follow to ensure that they are granted the correct amount of PTA.

Patents Issued Before March 2, 2010

Although the Wyeth decision was announced on January 7, 2010, the USPTO did not roll out the corrections to its computer program for calculating PTA until March 2, 2010. For all patents that issued prior to March 2, 2010, the USPTO's recently developed interim procedure can be used to request a

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