Patent Law

Many recently issued patents should receive a further extension of their patent terms based on the USPTO's miscalculations of PTA and the Federal Circuit's decision in Wyeth v. Kappos. To receive that those additional months of protection, however, the patent holder may have to file a civil action against the PTO.  The question for patentees will be whether the expected value of those additional months at the end of the patent term (years from now) are worth the up-front expense of filing suit.

I am confident that most applicants will find it not worthwhile to go about the effort of seeking the additional PTA extension.  As I wrote in 2009, most patents expire before the end of their alloted patent term because applicants fail to pay the maintenance fees. [Link]  That said, more than 45% of patents are maintained in-force through the patent term. 

In the next few days, we may see a few firms ramping-up as PTA specialists in a way that could reduce the cost of suing.

Links:

• PTA Statistics
• Patent Maintenance Fee Payments
• USPTO Re-Calculating PTA
• Wyeth v. Kappos
• PTA for Fun and Profit (Kamholz)