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In Mayo Foundation for Medical Education and Research v.
Iancu, No. 2018-2031 (Fed. Cir. Sept. 16, 2019), the
Federal Circuit affirmed the district court's decision that
Patent Term Adjustment is reduced by the period after an
interference concludes and the issuance of a notice of allowance,
where the interference follows the filing of a Request for
Continued Examination. The court rejected Mayo's argument that
an interference is equivalent to a Notice of Allowance because
claims must be "deemed allowable" to enter an
interference. The court explained that the "[USPTO]
regulations as a whole do not indicate that a declaration of an
interference is tantamount to a Notice of Allowance." Judge
Newman dissented, reasoning that Mayo had not requested further
examination after the interference and that the majority's
result is contrary to patent policy. Further discussion of
the decision can be found on
Finnegan's Federal Circuit IP Blog.
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