Tag: Patent Term Adjustment

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Don’t B Late; Federal Circuit Interprets the B Delay Calculation

Don’t B Late; Federal Circuit Interprets the B Delay Calculation

Mayo Foundation v. Iancu reads more like an arithmetic problem than a Federal Circuit decision. The reason is the case involves the Patent Term Adjustment Act (PTA) (see 35 U.S.C. § 154(b)). PTA determinations require calculating how many days of delay, from the effective filing date to the Notice of Allowance, are attributable to the applicant and how many to the PTO. Under one PTA scenario, the applicant is entitled to an adjusted term, recovering every day the application is pending beyond three years past the effective filing date for the balance of delay attributable to the PTO. This is called a “B Delay” (§154(b)1)(B)). However, the B Delay is subject to several exclusions. The disputed exclusion in Mayo concerned a Request for Continued Examination (RCE) of the application, which Mayo filed before the PTO declared an interference. 

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