A U.S. District Court for the Eastern District of Virginia
decision held that the United States Patent and Trademark Office
(USPTO) has been incorrectly determining patent term adjustment
(PTA) for some patents in which a Request for Continued Examination
(RCE) was filed during prosecution of the application. Any pending
application that has been allowed or any patent issued within the
last 180 days can be reviewed to determine if the USPTO improperly
calculated the PTA.
PTA is added to the 20-year base term for a patent to compensate
for delays in prosecuting the application prior to issuance of the
patent.
In Exelixis, Inc. v. Kappos (E.D. Va.), the Court held
that RCEs filed more than three years after the filing date of the
application "have no impact on PTA." Contrary to this
ruling, prior to this case, the USPTO had been subtracting the
period of application pendency, if any, that occurred more than
three years after the filing date of the application due to
