February 2010

Spotlight Info

In Wyeth v. Kappos, No. 09-1120 (Fed. Cir. Jan. 7, 2010), the Federal Circuit rejected the PTO’s interpretation of patent term adjustment (“PTA”) under 35 U.S.C. § 154(b).  Under the statute, patent applicants are entitled to PTA for each day the PTO does not meet certain examination deadlines and for each day the PTO fails to issue a patent within three years of the actual filing date of the application.  The statute also restricts PTA when periods of delay overlap.  But the Court noted that the two types of delays only overlap after the three-year mark.  The PTO, however, interpreted § 154(b) as allowing PTA only for the greater of the two types of delays, but never a combination of the two.  The Court found the PTO’s interpretation of § 154(b) was contrary to the unambiguous language of the statute and that Chevron deference did not apply.  Accordingly, the Court affirmed the grant of plaintiffs’ motion for SJ, extending the patent term of their patents according to the proper interpretation of the statute.  See full summary below.