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Prosecution Delays and Patent Term Adjustment on the Rise Again

by Dennis Crouch

In the standard case, a US utility patent will expire 20 years from its effective filing date.  But, there are several circumstances that might alter the patent term. As a consequence, only a minority of patents fit the standard.  One circumstance involves unduly delayed patent prosecution that results in “patent term adjustment” or PTA under 35 U.S.C. 154(b).  The two chart below show PTA awards over the past 17 years.  Of some importance here — over the past 18 months PTA has been steadily creeping-up.  This is generally an indication that the prosecution process has slowed down.

These numbers will likely continue to rise as indicated by the USPTO’s delays in issuing an initial office action rejection — only about 30% of cases are receiving a first office action within the 14 months allotted by Congress.  I’ll note here that the PTA does not ‘cost’ the USPTO anything in terms of up-front money and, may make it more likely that the patentee will pay the issue and back-end maintenance fees.

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