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Early RCE Creates Gaps In Patent Term Adjustment Award Tuesday, February 23, 2021 In Chudik V. Hirshfeld, the Federal Circuit upheld the USPTO’s determination that a Patent Term Adjustment (PTA) award for “C” delay is not available when an examiner reopens prosecution after an Appeal Brief is filed, because an award for “C” delay requires actual appellate review. The court warned of the consequences of filing a Request for Continued Examination (RCE) early in the examination process instead of pursuing an appeal right away, because that prevented an award for “B” delay over the time periods at issue. While not at issue in this case, patent holders may be wondering when the USPTO will start calculating PTA correctly under the 2019 ....
Thursday, February 18, 2021 The US Court of Appeals for the Federal Circuit affirmed a grant of summary judgment for the Director of the US Patent and Trademark Office (PTO), holding that the statutory language authorizing so-called “C-delay” patent term adjustment requires an adverse patentability finding that is reversed by a court or the Patent Trial & Appeal Board. Chudik v. Hirshfeld, Case No. 20-1833 (Fed. Cir. Feb. 8, 2021) (Taranto, J.) C-delay adds to a patent’s term to account for delay experienced during appellate review of an adverse patentability finding. C-delay does not apply when the examiner reopens examination after final rejection (in this case, four times over an 11-year period) because appellate review is not triggered when an examiner, and not the Board or a court, undoes a final unpatentability decision by reopening examination. ....