USPTO Appeals Exelixis Patent Term Adjustment Decision

As expected, the USPTO has filed a Notice of Appeal in the Exelixis patent term adjustment (PTA) case. As I summarized in this article, in a decision issued November 1, 2012 in Exelixis, Inc. v. Kappos, the U.S. District Court for the Eastern District of Virginia found that the USPTO's interpretation and application of the "RCE carve-out" provision of the Patent Term Adjustment (PTA) statute is contrary to law. Under the district court's interpretation, 35 USC § 154(b)(1)(B)(i) only comes into play if a Request for Continued Examination (RCE) is filed within the three-year period from the application's filing date. Under this interpretation, a significantly greater number of patents may be entitled to significantly greater PTA awards. It will be interesting to see if Exelixis or amici urge a fall-back interpretation of the RCE carve-out, such as the interpretation discussed in this article.