US patent term depends upon several factors. One factor is when the application is filed in the USPTO.
Unconfirmed reports today indicate that the USPTO agreed, in court, yesterday, that the USPTO has been systematically providing a patent term that is shorter than the patent term mandated by statute, in certain PCT U.S. national stage applications. Specifically, the USPTO has not been adding the time period from the date of filing in the USPTO of a PCT national stage application to the date of completion of the U.S. national stage requirements (the 35 USC 371(c) requirements ) in its determination of time to add to the base term of twenty years from filing date. Upon careful review of the statute, it appears that the USPTO should be accounting for that time period when determining patent term adjustment due to USPTO delay of more than 14 months from filing date in issuing a first office action.
It is very important to check the USPTO patent term determination and request correction, – – before paying the issue fee. This is because the right to contest an incorrect USPTO patent term determination may be cut off upon payment of the issue fee. See
35 USC 154(b)(3)((B)(ii) and 35 USC 154(b)(4)(A).
Accordingly, if you have any U.S. patent applications which were filed as PCT national stage applications, you therefore should check with your U.S. agent to ensure that they are aware of this issue.
Richard Neifeld
Neifeld IP Law, PC
