District Court Decision in Exelixis Changes Calculation of “B Delay” Patent Term Adjustment
On November 1, 2012, the U.S. District Court for the Eastern District of Virginia held that the U.S. Patent and Trademark Office (USPTO) has been incorrectly calculating patent term adjustments (PTAs) for patent applications in which a Request for Continuation (RCE) was first filed more than three years after the application’s filing date. In particular, the district court held that the USPTO’s interpretation of the patent term adjustment statute in 37 C.F.R. § 1.703(b)(1) contradicts the PTA statute, specifically 35 U.S.C.
§ 154(b)(1)(B), and such, is “not in accordance with law” and “in excess of [its] statutory . . . authority” under the Administrative Procedures Act. More
Case Law Update on Obviousness:
Common Sense and the “Simple” Invention
The 2007 U.S. Supreme Court decision, KSR International Co. v. Teleflex, Inc
., 127 S. Ct. 1727 (2007), significantly modified the test that courts employ to analyze the question of obviousness. The Supreme Court criticized the Court of Appeals for the Federal Circuit for too rigidly applying its “teaching-suggestion-motivation” test, for example, by often requiring that evidence of motivation to modify the prior art or to combine references must be found in published materials. Id
at 1741. More