How Long Can A Patentee Wait For A PTA Appeal?

Law360, New York (June 17, 2010, 1:05 PM EDT) -- In Wyeth v. Kappos, 591 F.3d 1364 (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit in a case of first impression held that the plaintiffs were entitled to a patent term adjustment under 35 U.S.C. § 154(b) due to the U.S. Patent and Trademark Office’s delay in prosecuting their patent application and that adjustment comprised an extension based on two nonoverlapping periods.

Until that decision, the USPTO’s regulations published at 69 Fed. Reg. 21706 (2004) had interpreted the statute such that the...
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