Written by Mark Terry   

Last week, the Federal Circuit affirmed a D.C. District Court decision extending the patent term of a Wyeth Alzheimer’s drug patent due to U.S. Patent and Trademark Office (USPTO) delay. As a Miami patent lawyer that deals with issued patents often, this case illustrates how a patent holder can use USPTO delays to their advantage by lengthening their patent term accordingly.

At the crux of this dispute between Wyeth Pharmaceuticals and the USPTO is a process for calculating the amount that a patent term is adjusted under the American Inventors Protection Act, 35 U.S.C. 154(b). The USPTO undisputedly caused delays during the prosecution of a patent Wyeth obtained for an Alzheimer’s drug. The USPTO argued that Wyeth was entitled to a smaller patent term adjustment under its “strained” interpretation of the patent term adjustment statute, 35 U.S.C. 154(b). The Federal Circuit disagreed with the USPTO’s interpretation of the statute and found for Wyeth, thereby affirming a longer patent term adjustment, as held by the D.C. District Court.

This case is significant because the decision has precedential authority over the patent term adjustment calculations of the USPTO. New patentees should read this decision closely and make sure that the patent term adjustment given to their patent by the USPTO is in line with this decision. Additionally, this case illustrates how USPTO delays can be turned to the patentee’s advantage by obtaining a longer patent term. In short, every day of USPTO delay may be added as an additional day to the patent’s term. This is of particular interest to pharmaceutical companies where every day that a patent is in force equals millions of dollars in revenue.