The USPTO recently discovered a coding error in their Patent Term Adjustment (PTA) determination software, which may impact U.S. patents issued between March 19, 2024, and July 30, 2024.
The error may have caused an incorrect calculation of delay under 35 U.S.C. 154(b)(1)(A) ("A" delay) and the amount of overlap under 35 U.S.C. 154(b)(2)(A) ("Overlap"). The USPTO states no other PTA calculations were affected. Even if an error did occur, the overall amount of PTA may still be correct if the inaccurate amount of "A" delay equals the inaccurate amount of "Overlap." In other instances, where the inaccurate amount of "Overlap" is different from the inaccurate amount of "A" delay, an erroneous amount of overall PTA may have been awarded.
Although the USPTO estimates about 1% of all patents issued from March 19, 2024, through July 30, 2024 were impacted by this error, which has since been identified and fixed, it would be advisable for all patentees issued a patent within that timeframe to check their PTA calculation quickly. The burden of identifying incorrect PTA errors is still on the patentee, and the non-extendable deadline for filing a request for reconsideration of PTA is seven months from patent grant. Thus, the last day to submit a request would be between October 19, 2024, and February 28, 2025.
To revise a PTA determination stemming from this coding error (i.e., where the sole reason for contesting the PTA determination is a calculation error in the amount of "A" delay and "Overlap"), a request for reconsideration may be filed without a fee within seven months of the date the patent was granted. In other words, the USPTO will waive both the request for reconsideration fee and any extension of time fees. To submit a request, the USPTO "Coding error impacting patent term adjustment software" notice should be mentioned (available HERE) and it may be appropriate to authorize fees to be charged to a deposit account in case the fee waiver is not applicable. If a request for reconsideration of PTA calculation is not solely based on the coding error, the fee is required.
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