Time Between Original And Corrected Restriction Requirement Nets No Further Patent Term Adjustment

Pfizer, Inc. v. Lee

Addressing patent term adjustment issues, the U.S. Court of Appeals for the Federal Circuit affirmed the U.S. Patent and Trademark Office's (USPTO) decision not to adjust the term of a patent, where the 197-day delay resulted from an examiner's issuance of a corrected restriction requirement. Pfizer, Inc. v. Lee, Case No. 15-1265 (Fed. Cir., Jan. 22, 2016) (O'Malley, J.) (Newman, J., dissenting).

The Patent Term Guarantee Act (35 U.S.C. § 154(b)) provides for the restoration of patent term under certain circumstances, including so-called "A-Delay" arising from the USPTO's failure to act on a pending application by certain examination guidelines. Prosecution of Pfizer's application (covering pharmaceutical methods for cancer treatment) incurred an initial delay when the examiner waited 404 days beyond the deadline for his first office action to mail a restriction requirement. Thereafter, during the course of a telephone interview,