Patentees May Request Recalculation Of U.S. Patent Terms

The United States Patent and Trademark Office (PTO) has released guidelines explaining how patentees of recently issued patents may request the recalculation of the terms of their patents.¹ This guidance arose from the Court of Appeals decision in Wyeth v. Kappos in January 2010, which held that the PTO had previously misapplied the statutory provisions relating to patent term adjustments.²

At issue in Wyeth were two periods of patent term adjustments provided by the U.S. patent statute: (i) an adjustment period for delays caused by the PTO's failure to adhere to prescribed deadlines for certain actions during the examination process; and (ii) an adjustment period for a patent that issues more than three years after its application date as a result of delays caused by the PTO.