Wyeth Decision Leads to Patent Term Recalculations

Online Exclusive: Calculation Concerns

It appears, at first glance, to be only a small victory. After fighting in court for two-and-a-half years, all the plaintiffs in Wyeth v. Kappos managed to obtain was about nine additional months of protection for their patents.

Congress responded in 1999 by providing "patent term adjustments" that kick in whenever the USPTO fails to act on a patent application in a timely fashion. If the USPTO fails to meet deadlines for taking certain actions, such as making an initial decision on an application, each day it exceeds the deadline will add one additional day to the term of the resulting patent. The delays that trigger these patent term adjustments are commonly called "A delays."

Congress also provided patent term adjustments for so-called
"B delays." The law provides that, generally, if the USPTO fails to issue a patent within three years of the filing date, each day of delay will result in an additional day being added to the term of the resulting patent.

The ruling highlights a problem with the statute. "It was clearly written by people who didn't understand the patent system," Siekman says. "But the statutory language is clear, and the USPTO doesn't have the power to alter the statute."

Decision Stands


Steven Seidenberg

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