What is Patent Term Adjustment?
The 14-4-4-4 and three-year rules, the applicant delays that subtract from them, and how PTA differs from patent term extension.
Definition
Patent term adjustment (PTA) is the number of days added to the 20-year term of a US patent to compensate for delays caused by the USPTO during examination, reduced by any delay attributable to the applicant. It is calculated under 35 U.S.C. § 154(b) and printed on the face of the patent.
Key Facts
- Statute: 35 U.S.C. § 154(b), implemented in 37 C.F.R. §§ 1.702 to 1.705
- Applies to: Utility and plant applications filed on or after May 29, 2000
- Where to find it: On the Notice of Allowance and on the front page of the issued patent
- Deadline to dispute: A request for reconsideration is due within 2 months of grant, extendable up to 5 additional months
- Cap: PTA cannot extend a patent past the expiration date set by a terminal disclaimer
The Three Kinds of USPTO Delay
A delay accrues when the USPTO misses its own interim deadlines:
- 14 months from filing to the first office action or notice of allowance
- 4 months to respond to an applicant's reply or appeal brief
- 4 months to act after a Board or court decision
- 4 months to issue the patent after the issue fee is paid
B delay accrues for every day the application is pending beyond 3 years from filing, excluding time consumed by a request for continued examination, an appeal, or applicant-requested delay.
C delay covers time lost to interferences or derivation proceedings, secrecy orders, and successful appeals.
Overlapping A and B delay is counted only once, a rule the Federal Circuit clarified in Wyeth v. Kappos in 2010.
Applicant Delay Subtracts
Any period in which the applicant failed to engage in reasonable efforts to conclude prosecution is deducted. The most common deductions are:
- Taking more than 3 months to respond to an office action, counted day for day
- Filing a supplemental reply or an information disclosure statement after a response, unless the IDS is accompanied by the safe-harbor statement
- Filing an RCE, which stops B delay from accruing
- Abandonment and revival
For docketing teams this is the practical lesson: every month of extension of time costs a month of term on the back end, which matters most for pharmaceutical and medical device patents where the last year of exclusivity is the most valuable.
PTA vs PTE
PTA compensates for USPTO delay and applies to every utility patent. Patent term extension under 35 U.S.C. § 156 compensates for time lost to FDA regulatory review and applies only to patents covering approved drugs, biologics, medical devices, and certain other regulated products. A patent can receive both.
Frequently Asked Questions
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How is patent term adjustment calculated?
Add the days of USPTO A delay (missed 14-month and 4-month deadlines), B delay (pendency beyond three years, excluding RCE and appeal time), and C delay (interferences, secrecy orders, successful appeals), remove any overlap, then subtract every day of applicant delay.
Does filing an extension of time reduce PTA?
Yes. Every day a response is filed after the three-month shortened statutory period counts as applicant delay and is subtracted from the adjustment, regardless of whether the USPTO was also late.
How do you challenge an incorrect PTA calculation?
File a request for reconsideration with the USPTO within two months of the patent grant, extendable by up to five months with fees. If the USPTO denies it, a civil action in the Eastern District of Virginia must be filed within 180 days of the decision.
What is the difference between PTA and PTE?
PTA restores term lost to USPTO examination delay and applies to all utility patents. PTE restores term lost to FDA review, is capped at five years, and applies only to patents covering regulated products such as drugs and medical devices.
Does a terminal disclaimer cancel patent term adjustment?
It caps it. A patent with a terminal disclaimer cannot extend beyond the disclaimed date, so any PTA that would push the term past that date is lost.
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