MPEP § 2733 — MPEP § 2733
Current through: 2022-07-01

2733-Patent Term Adjustment Determination 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2700 

 Section 2733 
 

 
 
 
 
 
 2733 Patent Term Adjustment Determination [R-01.2024]

 [Editor Note: 37 CFR
 1.705(a) below includes amendments applicable only to patents
 granted on or after January 14, 2013. See 37 CFR 1.705(a) (pre‑2013‑04‑01) 
 with respect to patents granted prior to January 14, 2013.] 

 
 37 CFR 1.705 Patent term adjustment determination. 

 
 (a) The patent will include notification of any patent term
 adjustment under 35 U.S.C. 154(b) . 
 

 
 *****

 

 The AIA Technical Corrections Act was enacted on January 14, 2013. See
 Public Law 112-274, 126 Stat. 2456 (2013). Section 1(h) of the AIA Technical Corrections
 Act revises the patent term adjustment provisions of 35 U.S.C. 154(b) and is effective for
 any patent granted on or after January 14, 2013. Section 1(h)(2) of the AIA Technical
 Corrections Act amended 35 U.S.C. 154(b)(3)(B)(i) to change “shall transmit a notice of that
 [patent term adjustment] determination with the written notice of allowance of the
 application under section
 151 ” to “shall transmit a notice of that [patent term adjustment]
 determination no later than the date of issuance of the patent.” See 126 Stat. at 2457.
 This change eliminates the need for the Office to provide an initial patent term adjustment
 determination with the notice of allowance and before the patent term adjustment under
 35 U.S.C.
 154(b)(1)(A)(iv) and 154(b)(1)(B) is known. See
 Changes to Implement Patent Term Adjustment Under Twenty-Year Patent
 Term, 65 FR 56365, 56374 (September 18, 2000) (explaining that a two-part
 process is required because the Office is obliged under 35 U.S.C. 154(b)(3) to provide a patent
 term adjustment determination before the issue date, and thus the patent term adjustment,
 is known). 37 CFR 1.705(a) has been amended to reflect that the Office will
 provide notification of the patent term adjustment on the patent. The Office will no longer
 provide a notification of the patent term adjustment with the mailing of the notice of
 allowance for any patent granted on or after January 14, 2013.
 

 The Office has revised 37 CFR 1.705 to implement the statutory
 changes to 35 U.S.C.
 154(b)(3)(B)(i) . The amendment to the statute provides that the
 Office shall transmit a determination of the patent term adjustment no later than the date
 of issuance of the patent. Accordingly, the Office is no longer required to transmit a
 determination at the time of the mailing of the notice of allowance which occurs before all
 of the guarantees of the statute could be calculated. The Office, however, will continue to
 provide a preliminary patent term adjustment calculation with the issue notification that
 is mailed to applicant prior to issuance of the patent, but the patent term adjustment
 indicated on the patent is the “official” notification of the Office’s patent term
 adjustment determination under 35 U.S.C. 154(b) . Accordingly, patentee
 should wait until the grant of the patent to determine whether or not a request for
 reconsideration of the patent term adjustment indicated on the patent is warranted. See
 MPEP §
 2734 for a discussion of the requirements of any such
 request.
 

 If a registered practitioner receives a patent term adjustment indicated
 on the front of the patent that is longer than expected, the practitioner may disclose the
 error to the Office in a letter in compliance with the practitioner’s duty of candor and
 good faith in practice before the Office. The Office will treat letters submitted by
 patentees stating that Office’s determination of patent term adjustment indicated on the
 patent is greater than what the applicant or patentee believes is appropriate by placing
 these letters in the file of the patent without comment. See Treatment of Letters
 Stating That the USPTO’s Patent Term Adjustment Determination Is Greater Than What the
 Applicant or Patentee Believes Is Appropriate , 75 FR 42079 (July 20, 2010),
 1357 OG 262 (August 24, 2010). The Office will not review these letters or issue
 certificates of correction under either 35 U.S.C. 254 or 255 on the basis of
 these letters. In addition, the Office will not grant a request for a certificate of
 correction under either 35 U.S.C. 254 or 255 to revise the patent term
 adjustment indicated in a patent, unless the certificate of correction is issued to revise
 the patent for consistency with (1) the patent term adjustment determined via a decision on
 the request for reconsideration under 37 CFR 1.705 ; or (2) the total patent
 term adjustment indicated on the USPTO patent electronic filing system screen that displays
 the patent term adjustment calculation for the patent. If patentee submits a request for a
 certificate of correction under either 35 U.S.C. 254 or 255 to revise the
 patent term adjustment indicated in a patent that also includes changes in the patent for
 which a certificate of correction would be appropriate, the request for a certificate of
 correction will not be granted unless the patentee submits a new request for a certificate
 of correction that does not also attempt to revise the patent term adjustment indicated in
 the patent.
 

 If patentee wants the Office to reconsider its patent term
 adjustment determination, the patentee must use the procedures set forth in
 37 CFR
 1.705(b) for requesting reconsideration of a patent term adjustment
 determination. Specifically, the procedures set forth in 37 CFR
 1.705(b) must be used whether the USPTO’s patent term adjustment
 determination is greater than or less than the adjustment that the applicant or patentee
 believes to be appropriate.
 

 A patentee may also file a terminal disclaimer at any time
 disclaiming any period considered in excess of the appropriate patent term adjustment. See
 35 U.S.C.
 253 and 37 CFR 1.321 . 
 

 Note that the Office does not require patentee to file either
 a request for reconsideration under 37 CFR 1.705(b) or a terminal
 disclaimer when the patent term adjustment indicated on the patent is greater than what the
 patentee believes is appropriate. As discussed above, the patentee or the appointed
 registered practitioner may disclose the alleged error to the Office in a letter in
 compliance with the practitioner’s duty of candor and good faith.
 

 Information as to how the patent term adjustment calculation has been made
 will be available through the USPTO patent electronic filing system at www.uspto.gov/PatentCenter .
 Applicants may routinely use the USPTO patent electronic filing system to check the
 accuracy of the data entered in the OPSG system for their applications (i.e., the type of
 the paper and date of receipt in the Office) throughout prosecution. If any errors are
 detected, they should be brought to the Office’s attention (e.g., by contacting the
 examiner or the Technology Center’s customer service representative) as soon as possible to
 ensure that they are corrected before allowance of the application and the determination of
 the patent term adjustment. In checking Office records, applicants should keep in mind that
 the date that should be recorded in the Office computer records is the date of receipt of
 the paper, not the date that it was mailed under 37 CFR 1.8 . In addition, if an original
 paper is misplaced by the Office and a duplicate is filed with a post card receipt showing
 the date of receipt of the original paper, the date shown on the post-card receipt for the
 original paper is the date that should be shown in the Office computer records. If Priority
 Mail Express ® service was used, then the date shown as the “date
 accepted” on the Priority Mail Express ® label will be entered
 into the Office computer records. Otherwise, the date reflected in the Office computer
 records for a duplicate copy of correspondence will normally be the date that the duplicate
 was received in the Office.
 

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 2701-Patent Term 

 2702-2709-[Reserved] 

 2710-Term Extensions or Adjustments for Delays Within the USPTO Under 35 U.S.C. 154 

 2711-2719-[Reserved] 

 2720-Applications Filed Between June 8, 1995, and May 28, 2000 

 2721-2729-[Reserved] 

 2730-Applications Filed on or After May 29, 2000; Grounds for Adjustment 

 2731-Period of Adjustment 

 2732-Reduction of Period of Adjustment of Patent Term 

 2733-Patent Term Adjustment Determination 

 2734-Application for Patent Term Adjustment; Due Care Showing 

 2735-[Reserved] 

 2736-Third-Party Papers 

 2737-2749-[Reserved] 

 2750-Patent Term Extension for Delays at other Agencies under 35 U.S.C. 156 

 2751-Eligibility Requirements 

 2752-Patent Term Extension Applicant 

 2753-Application Contents 

 2754-Filing Date 
 2754.01-Deadline for Filing an Application Under 35 U.S.C. 156(d)(1) 

 2754.02-Filing Window for an Application Under 35 U.S.C. 156(d)(5) 

 2754.03-[Removed and Reserved] 

 
 

 2755-Eligibility Determination 
 2755.01-Interim Extension of Patent Term During the Processing of the Application 

 2755.02-Interim Extension of Patent Term Before Product Approval 

 
 

 2756-Correspondence Between the USPTO and the Regulatory Agency 

 2757-Regulatory Agency Determination of the Length of the Regulatory Review Period 
 2757.01-Due Diligence Determination 

 
 

 2758-Notice of Final Determination - Calculation of Patent Term Extension 

 2759-Certificate of Extension of Patent Term 

 2760-Trade Secret, Confidential, and Protective Order Material 

 2761-Multiple Applications for Extension of Term of the Same Patent or of Different Patents for the Same Regulatory Review Period
 for a Product 

 2762-Duty of Disclosure in Patent Term Extension Proceedings 
 2762.01-Duty of Disclosure When a Terminal Disclaimer is Filed During Patent Term Extension Proceedings 

 
 

 2763-Limitation of Third-Party Participation 

 2764-Express Withdrawal of Application for Extension of Patent Term 

 2765-Petition for Stay in Processing of Patent Term Extension Application 

 2766-Processing of Patent Term Extension Applications When Reissue Has Been Filed 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:49:41