Generally, the basic term of a patent is either 20 years from the filing date of the patent application or 17 years from the issue date of the patent whichever is greater. However, there are many variations from the basic term. For example, the patent term for a continuation patent is calculated not from its own filing date but the filing date of its parent application. Also, if the first filed application is a provisional application, then the patent term is not calculated from the filing date of the provisional but the first filed nonprovisional patent application.
After calculating the basic patent term, the “Patent Term Adjustment” needs to be accounted for. Days may be subtracted from the basic term for delays caused by the patent applicant. An example of a delay caused by the applicant is filing a response to an office action after its due date. Days may be added to the basic term for delays caused by the Patent Office. For example, days are added to the basic term if the Patent Office takes an excessive amount of time providing an initial office action.
The life of the patent may be shorter than the patent term discussed above if the patent owner does not pay the maintenance fees which are due at regular intervals throughout the term of the patent. If the patent owner fails to pay these maintenance fees, then the patent will expire for failure to pay the maintenance fees.
The following case illustrates an aspect of calculating patent term in relation to Patent Term Adjustment. Under current patent laws, the Patent Office must examine your patent application in a timely manner. For example, an initial examination of a patent application must occur within 14 months after the filing the patent application. Otherwise, any delays are added to the patent’s basic term. [“A” Type Delays]. Additionally, if a patent issued after three years from the filing date of the patent application, then the patent term is extended by the amount of time after the three-year period. [“B” Type Delays].
The “A” Type Delay extends the patent term if the “A” Type Delay occurs before the three-year period. If the “A” Type Delay occurs after the three-year period, then only the B Type Delay is taken into consideration since there is an overlap between the two types of delays. Weyth v. Kappos 2009-1120 (Fed. Cir. Jan. 7, 2010). In Weyth, the Patent Office calculated 610 days of A Type Delay and 345 days of B Type Delay. Of the 610 days of A Type Delay, 51 occurred more than three years after the application was filed. Hence, there is an overlap of 51 days between the A and B Type Delays. During the prosecution, the applicant caused 148 days of delay. Hence, the patent term adjustment should be 756 days, i.e., 610 (A Type Delay) + 345 (B Type Delay) – 51 (Overlap) – 148 (applicant delay).
The specific periods discussed herein are provided as examples. To determine whether a patent is expired, many factors such as delays caused by the Patent Office or the Applicant or payment of maintenance fees are important. If you need assistance regarding the patent term, I recommend that you retain a patent attorney.
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