Sunday, July 18, 2010

Challenge to PTO procedure in view of Wyeth v. Kappos

Earlier this year, the Federal Circuit ruled in Wyeth v. Kappos that the PTO had been miscalcuating patent term adjustment (PTA) under 35 U.S.C. § 154(b).  In response, the PTO announced that it would revise its PTA calculation software to comply with Wyeth. In the meantime, the PTO enacted an temporary expedited procedure allowing patentees to request PTA recalculation. Because the procedure is expected to be temporary, the PTO is making it available only for patents issued between August 1, 2009 and March 2, 2010.

PatentDocs reports here that the Swiss pharma company Novartis has filed a lawsuit challenging the inapplicability of the procedure to "older patents." The basis for the challenge was "arbitrary and capricious" treatment under the Administrative Procedure Act. The lawsuit also asks for the district court to recalculate PTA for eleven Novartis patents.

If you want more background, PatentDocs has coverage of Wyeth v Kappos here and the PTO interim procedure here.

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