The USPTO has shortchanged hundreds of thousands of patents. For years, the agency has miscalculated patent term adjustments and issued patents, which expire too soon, according to the Federal Circuit's recent ruling in Wyeth v. Kappos.
The USPTO has promised to alter its method of calculating patent term adjustments for new patents, but that leaves owners of many existing patents out in the cold.
That's unlawful, according to some experts, who assert the USPTO is obligated to correct its past errors. "The Patent Act provides that the Director [of the Patent Office] shall provide the patentee with one opportunity to revise incorrect patent term adjustments. That means one opportunity under the statutory scheme, and the USPTO has not provided that opportunity," says Wayne Keown, of counsel at Preti Flaherty Beliveau & Pachios.
Because the USPTO misconstrued the statutory requirements for computing patent term adjustments, Keown adds, "there's a lot of people out there who have not had a meaningful opportunity to revise their patent term adjustments. So the USPTO needs to come up with a way to do that. There are a lot of patentees out there who are in an untenable position because of what the USPTO did."