I 
109TH CONGRESS 
2D SESSION 
H. R. 5120 
To amend title 35, United States Code, to conform certain filing provisions 
within the Patent and Trademark Office. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 6, 2006 
Mr. JENKINS (for himself, Mr. DELAHUNT, Mr. DUNCAN, and Mr. MEEHAN) 
introduced the following bill; which was referred to the Committee on the 
Judiciary 
A BILL 
To amend title 35, United States Code, to conform certain 
filing provisions within the Patent and Trademark Office. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. FINDINGS. 
The Congress finds the following: 
(1) The Congress historically has provided vig-
orous support for innovation in the useful arts by es-
tablishing a system of patent protection for products 
and processes. 
(2) Through section 156 of title 35, United 
States Code, the Congress sought to promote the de-
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velopment of innovative drugs by granting patent 
term restoration to companies to recover a portion 
of the patent term for such drugs that was con-
sumed during the approval process conducted by the 
Food and Drug Administration. 
(3) Consistent with the historic purpose of pro-
moting innovation, patent legislation, and subse-
quent rules promulgated by the United States Pat-
ent and Trademark Office (PTO), have routinely 
given the PTO wide discretion to excuse late filings 
and other mistakes that might otherwise result in 
the forfeiture of underlying patent rights. 
(4) Contrary to this routine practice, however, 
under section 156 of title 35, United States Code, 
the PTO has no discretion to excuse a filing that is 
even one day late. 
(5) In order to be consistent with the intent of 
protecting patent rights and promoting further inno-
vation, the PTO should be granted limited, cir-
cumscribed discretion to consider patent term res-
toration applications filed in an untimely manner. 
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SEC. 2. FILING OF APPLICATIONS FOR EXTENSIONS OF A 
PATENT TERM. 
(a) IN GENERAL.—Section 156 of title 35, United 
States Code, is amended by adding at the end the fol-
lowing new subsection: 
‘‘(i) UNINTENTIONAL DELAY.—The Director may ac-
cept an application under this section that is filed not later 
than 5 days after the expiration of the 60-day period pro-
vided in subsection (d)(1) if the applicant files a petition 
showing, to the satisfaction of the Director, that the delay 
in filing the application was unintentional. Such petition 
must be filed with the application in the case of an appli-
cation filed on or after the date of the enactment of this 
subsection and must be filed not later than 5 days after 
such date of enactment in the case of an application 
which, on such date of enactment, is pending, is the sub-
ject of a request for reconsideration of a denial of a patent 
term extension under this section, or has been denied a 
patent term extension under this section in a case in which 
the period for seeking reconsideration of such denial has 
not yet expired. The Director shall make a determination 
on a petition under this subsection not later than 30 days 
after the date on which the petition is received. If no de-
termination has been made on the petition within that 30- 
day period, the petition shall be deemed to be denied.’’. 
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(b) REVIVAL FEES.—Section 41(a)(7) of title 35, 
United States Code, is amended— 
(1) by striking ‘‘or for an’’ and inserting ‘‘for 
an’’; and 
(2) by inserting after ‘‘reexamination pro-
ceeding,’’ the following: ‘‘or for an unintentionally 
delayed application for patent term extension,’’. 
(c) EFFECTIVE DATE.—The amendments made by 
this section shall take effect on the date of the enactment 
of this Act, and shall apply to any application for patent 
term extension under section 156 of title 35, United 
States Code, which— 
(1) is filed on or after the date of the enact-
ment of this Act; or 
(2) on such date of enactment— 
(A) is pending; 
(B) is the subject of a request for reconsid-
eration of a denial of a patent term extension 
under section 156; or 
(C) has been denied a patent term exten-
sion under such section 156 in a case in which 
the period for seeking reconsideration of such 
denial has not yet expired. 
Æ 
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