Recent Rulings May Increase Available Patent Term

On January 15, 2014, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a decision that changed the calculation of Patent Term Adjustment (PTA) for an application that included a Request for Continued Examination (RCE). In that decision, Novartis AG v. Lee, No. 2013-1160, -1179 (Fed. Cir. 2014), the CAFC determined that, for an application whose prosecution includes an RCE filing, the amount of "B-delay" used to calculate PTA includes the time between allowance and issuance.

The statute governing PTA provides for extension of the term of a patent where the United States Patent and Trademark Office has failed to issue a patent within three years of the filing date of an application. See 35 U.S.C. § 154(b)(1)(B). The amount of delay attributable to this failure is known as "B-delay." The amount of B-delay, however, does not include "any time consumed by continued examination of the application requested by the applicant under section 132(b)." 35 U.S.C.