Important New Patent Term Adjustment Decision Allowing Post-RCE B Delay

A recent decision calls into question the US Patent and Trademark Office (PTO) regulation providing that B delay stops accruing as soon as a Request for Continued Examination (RCE) is filed. In March 2018, the PTO declined to appeal a district court decision rejecting the PTO's application of the provision excluding "time consumed by continued examination" from "B delay" under the patent term adjustment (PTA) statute. See ARIAD Pharms. Inc. v. Matal, No. 1:17–cv–733, 2018 WL 339141 (Jan. 5, 2018). Although the circumstances of the ARIAD case were unusual, the implications of the decision could be broader, potentially entitling patentees to additional days of PTA for most applications involving continued examination.