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PATENT TERM
The term of a U.S.
patent has been changed from the old
17 from issuance to 20 from the date
of application filing. This means
that the patent term is running
during the term of patent
prosecution (or non prosecution
while waiting for the examiner to
reach the case on his/her docket).
The USPTO has issued
a “guarantee” that certain
prosecution steps will take place
within specified times 35 U.S.C.
154, MPEP 2730. If these steps are
delay, e.g., first office action,
the applicant is entitled to an
extension of the patent term. (Note
a patent term extension is published
on the first page of an issued
patent.)
The “Guarantee of
Prompt Patent and Trademark Office
Responses” obviously applies to both
patent and trademark applications.
Included in the “prompt actions” is
a first office action within 14
months of the application filing.
The USPTO also promises to reply to
the response of an applicant within
4 months and to issue a patent
within 4 months of payment of the
issue fee.
The USPTO guarantees
that no application will extend
beyond 3 years, subject to the
terms of paragraph 2.
Generally, the patent term extension
will be reduced by the amount of
time the applicant “failed to engage
in reasonable efforts to conclude
prosecution of the application.”
For example, failing to respond to a
USPTO office action within 3 months
will be considered failing to
conclude prosecution.
At the
conclusion of the case (assuming an
award of a patent) the USPTO
determines whether the
applicant/patentee is entitled to a
term extension. This is
communicated with the notice of
allowance. The applicant is
provided one opportunity to request
reconsideration of the patent term
adjustment. The filing fee is
currently $200.00.
October
25, 2008
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