Pfizer, Inc. v. Lee, No. 15-1265 (Fed. Cir. 2016)
Annotate this CaseIn May 2003, Wyeth filed the 894 Patent Application, claiming a pharmacological method for cancer treatment. In July 2003, the PTO mailed a Notice to File Missing Parts. Wyeth filed the missing parts in December 2003. The statutory deadline for the PTO to issue its first office action was 14 months from the filing date. In August 2005, having received no office action, Wyeth sent a letter. In August 2005, 404 days after the deadline, the PTO mailed a restriction requirement, 35 U.S.C. 121, which generally constitutes an office action. The deadline for Wyeth to reply was extended to February 10, 2006. On that day, during a telephone interview, the Examiner acknowledged that the restriction requirement was not complete. The PTO issued a corrected requirement in February 2006. In May 2006, Wyeth filed its response. Later, the PTO delayed the mailing of a separate office action for 280 days. In October 2011, the PTO issued a Notice of Allowance. In April 2012, the application issued as the 768 patent, reflecting an award of 1291 days of patent term adjustment, 35 U.S.C. 154(a)(2). The Federal Circuit affirmed denial of an adjustment for 197 days from August 10, 2005-February 23, 2006. Discussions concerning the challenged restriction requirement, which satisfied the notice requirement, were part of the typical “back and forth” of prosecution, not the type of error intended to be compensated.
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