• Sep 16 2019
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  • Category: CAFC Updates

The Mayo Foundation appeals from a District Court decision which affirmed the United States Patent Office’s calculation of patent term adjustment (“PTA”) for U.S. Patent 8,981,063 (relating to antibodies purportedly useful for treating disease conditions characterized by immunosuppression: e.g., cancer, AIDS) under 35 U.S.C. § 154. Upon issuance of the patent, the PTO calculated a PTA of 621 days, with no B Delay. Mayo filed a request for redetermination, claiming that it was due 685 days, because the examiner’s sua sponte reopening of prosecution after termination of the interference was not RCE time since RCE time ends once the PTO takes an official action indicating that all the pending claims are allowable and closes prosecution and under PTO regulations a declaration of an interference comprises such an indication of allowability. However, the CAFC holds that, where an RCE has previously been filed, the time between termination of an interference and the date of mailing of the Notice of Allowance is time consumed by continued examination of the application requested by the applicant, and affirms. Judge Newman dissents, because in her view the post-interference examination period plainly is examination delay due to PTO procedures.

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