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 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 §§ 1.702-1.704. The computer program will perform the patent term adjustment (PTA) calculation at the time of issuance of the patent and will be included in the Issue Notification Letter that is mailed to applicants approximately three weeks prior to the issuance of the patent. 

The PTA calculation under 35 USC § 154(b) indicated on the patent is the official notification of the Office’s patent term adjustment determination. Any request for reconsideration pursuant to 37 CFR 1.705(b) of the PTA calculation pursuant shall be made within two months of the issuance of the patent. See 37 CFR 1.705(b).  The time period under 37 CFR 1.705(b) may be extended by five months. Any request for reinstatement under 37 CFR 1.705(c) of all or part of the period of adjustment pursuant to 37 CFR 1.704(b) for failing to reply to a rejection, objection, argument, or other request within three months of the date of the Office Communication notifying the applicant of the rejection, objection, argument or other request must be filed prior to the issuance of the patent. This time period is not extendible.

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. Applications which are eligible for patent term adjustment are original applications (including continued prosecution applications), except for design patents, filed on after May 29, 2000, and patents issued on such applications. See 37 CFR § 1.702(f).

(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 and the patent grant is mailed to the applicant.

(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). All "A" delays will be included in the PTA determination that is mailed as part of 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 under section 111(a) in the United States or, in the case of an international application, the date of commencement of the national stage under section 371.  See 35 U.S.C. § 154(b) and implementing regulations 37 CFR 1.702(b) & 1.703(b). "B" delay is 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 a request for reconsideration of the patent term adjustment pursuant to 37 CFR 1.705(b)


(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)-(12).

(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 will be determined at the time of the issuance of the patent and will be included in the ISSUE Notification Letter that is mailed to applicants approximately three weeks prior to issuance of the patent.

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2. What do I do if I have a question about the PAIR screen?

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

If question is concerning the Patent Term Adjustment determination contact the Office of Patent Legal Administration (OPLA) at 1-(571) -272-7702.

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Last Modified: 4/24/2014 2:12:11 PM