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PTA Calculation

 EXPLANATION OF PATENT TERM ADJUSTMENT CALCULATION 

 

 

1. What am I viewing?

     Applicants are viewing the Patent Applicant Information Retrieval (PAIR) screen which displays the calculated adjustment to the term of the patent. All calculations displayed on the PAIR screen are determined by a computer program that uses the information recorded in the Office's automated patent application information system (the Patent Application Location and Monitoring system or PALM). The computer program will determine the amount of adjustment to the term of patent pursuant to 35 U.S.C. § 154(b) and 37 CFR 1.702-1.705. The computer program will perform the Patent Term Adjustment (PTA) calculations twice. The first calculation will be performed when the Office enters or mails the Notice of Allowance and the second calculation will be performed when the Office enters or mails the Issue Notification Letter.
     The PAIR screen displays a series of entries related to the specific application which is being evaluated to ascertain whether the application will receive an adjustment to the term of the patent.

     The specific entries are as follows:

     (1) APPLICATION FILING DATE. The APPLICATION FILING DATE entry reflects the original filing date of the application and not the date that the application became eligible for adjustment of the patent term due to examination delay. Plant and utility patents issuing on applications filed on or after May 29, 2000 are eligible for Patent Term Adjustment provisions of 35 U.S.C. § 154(b) (amended, effective May 29, 2000) and 37 CFR 1.702-1.705.  This applies to international applications that have an international filing date of May 29, 2000 or later.


     (2) ISSUE DATE. The ISSUE Date entry reflects the date the application will issue as a patent, that is the date the patent is granted.

     (3) “A” DELAYS. This entry reflects adjustments to the term of the patent based upon USPTO delays pursuant to 35 U.S.C. § 154(b)(1)(A)(i)-(iv) and the implementing regulations 37 CFR 1.702(a) & 37 CFR 1.703(a).  An “A” delay may occur prior to the notice of allowance and be included in the PTA determination accompanying the notice of allowance or may occur after the entry or mailing of the notice of allowance and be included in the PTA determination in the issue notification letter.

     (4) “B” DELAYS. This entry reflects adjustments to the term of the patent based upon the patent failing to issue within three years of the actual filing date of the application in the United States.  See 35 U.S.C. § 154(b) and implementing regulations 37 CFR 1.702(b) & 1.703(b).  “B” delay is always calculated at the time that the issue notification letter is generated and an issue date has been established. 

     (5)  “C” DELAYS.  This entry reflects adjustments to the term of the patent based upon USPTO delays pursuant to 35 U.S.C. § 154(C)(i)-(iii) and implementing regulations 37 CFR 1.702 (c)-(e) & 1.703(c)-(e).  These delays include delays caused by interference proceedings, secrecy orders, and successful appellate reviews.

     (6) OVERLAPPING DAYS BETWEEN “A” AND “B” OR “A” AND “C”. This entry reflects the calculation of overlapping delays consistent with the Federal Circuit’s interpretation of 35 U.S.C. § 154(b)(2)(A) in Wyeth v. Kappos.  Specifically, this entry reflects the summation of the number of days that an “A” delay occurred on the same calendar day with either a “B” delay or a “C” delay.  The number of days determined to be overlapping will reduce the summation of the number of days calculated for “A” delays, “B” delays and “C” delays.

     (7) NONOVERLAPPING USPTO DELAYS. This entry reflects the overall summation of the USPTO delays minus any overlapping days.  Particularly, it includes the following: (“A” delays + “B” delays + “C” delays) - (the number of calendar days overlapping between “A” delays and “B” delay + the number of calendar days overlapping between “A” delays and “C” delays).  This entry does not reflect the number of days of applicant delays pursuant to 35 U.S.C. § 154(b)(2)(C) and 37 CFR 1.704(b) and 37 CFR 1.704(c)(1)-(11).

     (8)  PTO MANUAL ADJUSTMENTS.  This entry reflects the UPSTO personnel adjusting the calculation to increase or decrease the  patent term adjustment based upon either an application for patent term adjustment pursuant to 37 CFR 1.705(b) or a request for reconsideration of the patent term adjustment under 37 CFR 1.705(d).  In addition, USPTO may reduce the PTA determination in response to a letter of good faith and candor regarding PTA advising the USPTO that the USPTO may have granted more PTA than applicant/patentee is entitled.

   (9) APPLICANT DELAYS.  This entry reflects adjustments of the patent term due to the Applicant's failure to engage in reasonable efforts to conclude prosecution of the application for the cumulative period in excess of three months. See 35 U.S.C. § 154(b)(2)(C)(ii) and implementing regulation 37 CFR 1.704(b). The entry also reflects additional Applicant's failure to engage in reasonable efforts to conclude prosecution of the application. See 35 U.S.C. § 154(b)(2)(C)(iii) and implementing regulations 37 CFR  1.704(c)(1)-(11).

     (10) TOTAL PTA CALCULATION.  This entry reflects the summation of the following entries:  NONOVERLAPPING USPTO DELAYS (+/or – PTO MANUAL ADJUSTMENTS) – APPLICANT DELAYS.  It is noted that the TOTAL PTA CALCULATION determined at the time of the notice of allowance will not reflect PALM entries that are entered after the entry or mailing of the notice of allowance.

The TOTAL PTA CALCULATION at the time of the notice of allowance will not have considered 35 U.S.C. § 154(b)(1)((A)(iv) and implementing regulation 37 CFR 1.702(a)(4) and 35 U.S.C. § 154(b)(1)(B) and implementing regulation 37 CFR 1.702(b) that increase the amount of PTA.  Moreover, the calculation would not have considered any responses taking more than three months after the entry or mailing of notice of allowance under 37 CFR 1.704(b) or reductions under 37 CFR 1.704(c)(10) that could reduce the amount of PTA.  These calculations will be included in the USPTO determination that is provided in the issue notification letter that is provided approximately three weeks prior to the issue date of the patent.

 

2. What do I do if I do not agree with the patent term adjustment determination?

     If Applicant does not agree with the patent term adjustment determination as shown on the Notice of Allowance which is reflected on the PAIR screen, Applicant may file an application for patent term adjustment requesting reconsideration of the patent term adjustment determination and any "due care" showing. See 35 U.S.C. § 154(b)(3)(B) and 37 CFR 1.705(b) and (c). Applicant must file an application for patent term adjustment no earlier than the date of mailing of the notice of allowance and no later than the payment of the issue fee. The application for patent term adjustment must be accompanied by the requirements enumerated in 37 CFR 1.705(b).

     If Applicant agrees with the TOTAL PTA Calculation determination shown on the Notice of Allowance which is reflected on the PAIR screen, but, believes that all or part of the term of the patent being reduced pursuant to 37 CFR 1.704(b) is due to Applicant being unable to respond within three months mailing of the Office communication and Applicant was unable to meet the deadline in spite of all due care, then Applicant may file an application for patent term adjustment requesting reinstatement of the period reduced pursuant to 37 CFR 1.704(b). See 37 CFR 1.705(c). Any request for reinstatement will not be granted for more than the three additional months for each reply beyond three months from the mailing of the application. Applicant(s) must file an application for patent term adjustment no earlier than the date of mailing of the allowance and no later than the payment of the issue fee. Applicant's request for patent term adjustment requesting reinstatement of all or part of the term must comply with the requirements enumerated in 37 CFR 1.705(c).

     If patentee finds that the patent indicates or should have indicated a revised patent term adjustment, any request for reconsideration of the patent term adjustment indicated in the patent must be filed within two (2) months of the date the patent issued and must comply with the requirements of 37 CFR 1.705(b)(1) and (2). See 37 CFR 1.705(d). 

The USPTO does not calculate and inform the applicant of the patent term adjustment based upon the three-year pendency provision of 35 U.S.C. § 154(b)(1)(B) in the notice of allowance because the USPTO must know the date the patent will issue to be able to calculate the patent term adjustment based upon this provision.  Thus, reconsideration of the patent term adjustment indicated in the patent as it relates to the three-year pendency provision of 35 U.S.C. § 154(b)(1)(B) is not considered a matter that could have been raised in an application for patent term adjustment under 37 CFR 1.705(b) (provides for reconsideration of the patent term adjustment indicated in the notice of allowance).  Therefore, a request for reconsideration of the patent term adjustment calculation based on the three-year pendency provision of 35 U.S.C. § 154(b)(1)(B) will be considered timely under 37 CFR 1.705(d) if filed within two months of the date the patent issued.

Because the “B” delay is not determined until the patent issues, accordingly, calculation of overlap between “A” and “B” delay will also not occur until the time the patent issues and therefore an request for reconsideration of patent term adjustment as it relates to overlapping time periods will be considered timely under 37 CFR 1.705(d).  Other provisions that will be timely under 37 CFR 1.705(d) include 37 CFR 1.702(a)(4) and 1.704(c)(10), and some instances under 37 CFR 1.704(b).

 

3. What do I do if I have a question about PAIR or PTA calculation?

     If the question is concerning how PAIR works contact the Patents Electronic Business Center (EBC) at 1-866-217-9197 (toll free) or (571) 272-4100.

    If you have questions concerning the PTA determination contact the Office of Patent Legal Administration’s helpline for PTA at 571-272-7702.

 

 

 

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Last Modified: 2/12/2010 12:47:59 PM