Article September 22, 2021
180-Day Statute of Limitations Under 35 U.S.C. 154(b)(3) & (4) Applies to Final PTA Determinations, Although Time Between Allowance and Issuance Should Not Be Excluded
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The Fed Cir affirms dismissal of challenges to the PTO's patent term adjustment determinations on 15 patents as untimely under 35 U.S.C. 154(b)(3) & (4), but reverses patent term adjustment determination on 3 patents under 35 U.S.C. 154(b)(1)(B).
Novartis AG v. Lee., ___ F.3d ___ (Fed. Cir. Jan. 15, 2014) (TARANTO, Newman, Dyk) (D.D.C.; Huvelle) (2 of 5 stars)
The Fed Cir rejected the patentee's argument that the 180-day statute of limitations for challenging patent term adjustment determinations only applied to provisional adjustment determinations and not to final adjustment determinations under 35 U.S.C. 154(b)(3) & (4) because "the statutory language on which [patentee] relies is a flaw in drafting that cannot reasonably support the construction [patentee] advances." Slip op. at 11 (noting that Congress recognized and corrected the drafting flaw). In addition, the 180-day rule of paragraph (b)(4) did not need to be equitably tolled, because a failure to advance a legal theory is not a sufficient basis for securing equitable tolling. And the dismissal was not a violation of the Fifth Amendment, because the dismissal resulted from the patentee's own neglect.
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