Patent Term Adjustment 2013

By Dennis Crouch

In 2011, I discussed an emerging downward trend in the percent of patents awarded at least some patent term adjustment (PTA). PTA extends the life-span of patent rights beyond the ordinary 20-year term and is intended to compensate a patentee for USPTO delays in issuing the patent.

The downward trend first reported in 2011 is continuing and is a further indication that the PTO is beginning to seriously tackle the rampant backlog and prosecution delays that have been an ever-present part of the system for so long. Still, over 70% of recently issued patents have lengthened patent terms due to patent office delays that go beyond the statutory bounds outlined in 35 U.S.C. 154. The time-series chart below breaks-down the numbers even further, showing impressive drops in the percentage of patents that receive more than one- and two-years of term adjustment.

The break-point of the charts in early 2010 shows the impact of the Federal Circuit’s Wyeth decision holding that the PTO had been under-calculating patent term. The second chart shows the average PTA award (for those receiving PTA).

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.