We know from
Novartis v. Lee that a patent application does not
earn "B delay" type Patent Term Adjustment (PTA) from the
time an RCE is filed until a Notice of Allowance is issued, but an
application still can earn PTA for "A delay" when the
USPTO takes more than four months after the RCE is filed to act on
the application. However, the USPTO has been charging
"Applicant Delay" when the applicant files any paper
between the RCE and the next Office Action or Notice of Allowance,
even though no PTA statute or rule expressly governs the post-RCE
period.
The Patent Term Adjustment Statute
The PTA statute at issue is 35 USC § 154(b)(2)(C), which
provides for a deduction from any PTA award "equal to the
period of time during which the applicant failed to engage in
reasonable efforts to conclude prosecution of the
application." The statute also expressly delegates to the
USPTO the authority to "prescribe regulations establishing the
circumstances that constitute a
