Supreme Court Denies Cellect Petition On Interplay Between PTA And ODP

The Supreme Court denies Cellect LLC's petition for certiorari to consider whether patent term adjustment ("PTA") should be included in patent term for obviousness-type double patenting ("ODP") purposes.

On October 7, 2024, the U.S. Supreme Court denied the petition for certiorari filed by Cellect LLC in Cellect LLC v. Vidal, No. 23-1231. Cellect's petition was of interest to many in the patent community because it raised the question whether PTA, which is awarded due to U.S. Patent and Trademark Office delays, is included in patent term when determining whether the claims are obvious under the judicially created doctrine of ODP. Because the Supreme Court has denied review, the Federal Circuit's decision stands. The Federal Circuit found that PTA, unlike patent term extension, is included in patent term for purposes of the ODP analysis: "ODP for a patent that has received PTA ... must be based on the expiration date of the patent after PTA has been added." In re