What is Patent Term Adjustment (PTA)
Patent term adjustment (PTA) is a process carried out by the United States Patent and Trademark Office (USPTO) that awards day-for-day credits to the normal patent term based on delays in prosecution at the USPTO. Any USPTO delay that occurs during prosecution of an application is offset by delays caused by applicants. The default term of a typical patent is twenty years, counted from the earliest priority date of the patent application. PTA is intended to compensate for USPTO delays in patent prosecution. Patent Term Adjustment is calculated based on the rules formed under the Patent Term Guarantee Act of 1999 and codified at 35
U.S.C. § 154(b) as a way to balance unreasonable delays caused by the USPTO and Applicants during examination of a non-provisional patent application such that, if warranted, an Applicant could gain additional patent term (i.e., effective patent term could be extended past 20 years from an application’s earliest effective filing date.) Patent Term Adjustment (PTA) under 35 U.S.C. §154(b) and Patent Term Extension (PTE) under 35 U.S.C. §156 provide for extensions on the standard patent term, which can be very valuable for products that have long development and/or regulatory approval lifecycles, such as in the case of pharmaceuticals.
As patent term is now based on the priority date instead of the issued date, delays in prosecution may reduce the term of a granted patent. Patent term adjustment could effectively reduce any possible patent term reduction caused by USPTO delays. For biotechnology and pharmaceutical inventions, the term of a patent is of particular importance because commercialization often occurs long after the patent application is filed and because research and development costs are often high. Every day in the term of a patent behind a successful product can be highly valuable.
Thus, even though the USPTO provides a PTA calculation with the Issue Notification and on the face of an issued patent, it is generally a good idea to confirm the USPTO’s PTA calculation, and if there is an error, to file a petition with the USPTO to challenge the PTA calculation. If a patentee is unhappy with the PTA automatically calculated by the USPTO, a petition for reconsideration can be filed no later than two months from the date the patent was issued; this deadline can be extended by up to 5 months with payment of appropriate extension of time fees.
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