Daiichi Sankyo Co. v. Lee, No. 14-1280 (Fed. Cir. 2015)
Annotate this CaseThe Patent Act restores a patent’s term for delay during prosecution: “A Delay,” arises when the PTO fails to meet statutory deadlines; “B Delay,” arises when, through the fault of the PTO, the agency fails to issue a patent within three years after the application’s filing date, 35 U.S.C. 154(b). Until 2010, the PTO’s practice was to restore, upon issuance, patent term equaling the greater of the number of days of A and B Delays. In 2007, a patent-holder successfully challenged that practice. In response, the PTO adopted an “interim procedure” and an “optional interim” procedure for patents that issued before March, 2010, under which patentees could seek reconsideration up to 180 days after issuance, for adjustments made under the earlier calculation method. Daiichi claims that, in adjusting its patents, the PTO restored days for either the A or B Delay, but not both, so that the term of each was shortened by at least 321 days. The PTO dismissed Daiichi’s requests for reconsideration as untimely under the two-month window. The Federal Circuit affirmed summary judgment in favor of the PTO, declining to find that the consistent treatment of all patents issuing before the Optional Interim Procedure or use of the 180-day administrative review period arbitrary and capricious.
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