How To Calculate Life/Expiry Date Of United States Patent
For US Patents Without Terminal Disclaimer
Anticipated Expiration Date = Earliest Filing Date + 20 Years
(PTA or PTE, if any) plus 20 years plus the earliest filing date = revised expiration date
For US Patents With Terminal Disclaimer
Earliest filing date + 20 years= Anticipated Expiry date
Earliest filing date + (PTA or PTE if any) + 20 years= Adjusted Expiry Date*;
*Marked text indicates that the adjusted expiry date can extend past the disclaimer date in case of patent term extension (i.e., PTE) and the adjusted expiry date cannot extend past the disclaimer date in case of patent term adjustments (i.e., PTA).
Table of Contents
1. Patent Term Adjustment (PTA)
Patent Term Adjustment or PTA is extending the term of life of a U.S. patent. As we know, the life of a patent is 20 years from the filing date, the PTA extends the life or term of a patent beyond 20 years.
Prosecution delays may reduce the enforceable life of a patent.
The PTA accommodates any delays caused by the USPTO While prosecuting a US utility of plant patent application. That said, there are four types of delays under which the PTA comes into play – Type A, Type B, Type C, and Applicant Delay.
1.1 Type A delay
Type A delay – Now as per the U.S. Patent laws, when an application is first filed in the USPTO, first office action must be issued within 14 months by the office. Going further, following office actions are issued within 4 months after receiving response from the applicant.
Failure to do leads to Type A delays on behalf of USPTO.
Type A delay = Date of issuance of office action – (Date of receipt of applicant response + 4 months/14 months).
1.2 Type B delay
Type B delay – This type of delay takes place when the prosecution period of an application extends beyond three years from filing date of the application. Also, there must be no request for continued examination filed during this time period of three years.
If request for continued examination is filed after three years from filing date of the patent application, delay is estimated up to same date that is of filing of request for continued examination.
Type B delay = Date of issue of patent/Date of filing of first RCE – (Date of filing of application + 3 years)
1.3 Type C delay
This type of delay is calculated in the events of secrecy orders or interferences.
1.4 Applicant delay
Applicant delay comes into role when the applicant fails to respond to the office action within 3 months of mailing of the office action by the USPTO examiner.
Total PTA = Type A + Type B + Type C – Applicant Delay – Overlapping delays.
How to check patent term adjustment /extension for a U.S. Patent?
In order to check if life of a U.S. patent is extended by means of patent term adjustment/extension, one can do the same at USPTO website, Patent Center.
After entering the respective field as available for example, application or patent or publication, one enters the number and the application data will be retrieved for respective number.
Once the application data is retrieved, at the left side, click on Patent Term Adjustment, by doing so, you can see the term adjustments due to PTA or PTE.
For example:
Thus, as here we can see that a patent term is adjusted by 25 days.
This is calculated as in:
Total PTA = Type A + Type B + Type C – Applicant Delay – Overlapping delays.
Therefore, in this case, Total PTA = 68 + 0 + 0 – 43 – 0 = 25 days
Moreover, one can also check the detailed patent term adjustment history from the same page.
2. Patent Term Extension (PTE)
In order to compensate for the time lost from the total patent lifetime during the marketing approval process, the patent term extension, or PTE, was implemented. This was done particularly to address the needs of patents in the drug and food industries, where pre-market approval (for example, by the FDA) is required. Additionally, this was done to balance the interests of producers of both branded and generic medications.
Thus, we can say that PTE overcomes commercial delays due to regulatory review.
Both PTA and PTE can be applied to a patent.
The earliest filing date as mentioned above is the filing date of a non-provisional prior application (i.e., complete specification) filed for the first time.
If the earliest parent patent or application is terminated in any other way before it reaches the end of its full statutory term as currently reduced by any terminal disclaimer, is statutorily disclaimed in whole or terminally disclaimed under 37 CFR 1.321, is held invalid by a court of competent jurisdiction, is found to be unenforceable, is found to be invalid by a court of competent jurisdiction, has all claims cancelled by a re-examination certificate, is reissued, or is otherwise
Anticipated expiry date is expiry date of the earliest filed parent patent/application i.e., actual expiry date of the earliest parent without considering any term adjustments, extensions, fee maintenance, rendered unenforceable; invalidated by a court of competent jurisdiction; claims canceled by a re-examination certificate; is reissued, or is in any manner terminated prior to the expiration of its full statutory term as presently shortened by any terminal disclaimer.
The anticipated expiry date undergoes changes as per the above conditions and is not the final expiry date.
The final expiry date is referred to as adjusted expiry date.
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