by Dennis Crouch
A second amicus brief has been filed – this one from the Intellectual Property Owners Association (IPO) – encouraging the Supreme Court to grant certiorari in Cellect, LLC v. Vidal, No. 23-1231. The case concerns the interplay between the Patent Term Adjustment (PTA) statute, 35 U.S.C. § 154(b), and the judicially-created doctrine of obviousness-type double patenting (ODP). (more…)
by Dennis Crouch
The Federal Circuit’s August 2023 decision in In re Cellect, LLC has set-up a significant question regarding the interplay between the patent term adjustment (PTA) statute, 35 U.S.C. § 154(b), and the judicially-created doctrine of obviousness-type double patenting (OTDP). Now, Cellect is seeking Supreme Court review, recently filing a petition for an extension of time that also indicated its intent to file. Cellect’s petition is now due May 20, 2024, and I expect significant support from the patent owner community.
Patentees often receive PTA due to USPTO delays that otherwise eat into the 20-year patent term. A fundamental issue in Cellect boils down to whether a patentee must forfeit their PTA term extensions to avoid an OTDP invalidity finding. This comes up in situations where a patentee has two patents that cover only slightly different inventions. Most often this is seen in family-member continuation applications, but it can also arise when applicants file several applications all within a short period.
Under the judge-made law of OTDP (more…)