MPEP § 2731 — MPEP § 2731
Current through: 2022-07-01

2731-Period of Adjustment 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2700 

 Section 2731 
 

 
 
 
 
 
 2731 Period of Adjustment [R-01.2024]

 [Editor Note: 37 CFR
 1.703(a)(1) , as reproduced below, includes amendments applicable
 only to patents granted on or after January 14, 2013 and 37 CFR 1.703(b)(4) and
 (e) , as reproduced below, include amendments applicable only to
 applications and patents in which a notice of allowance issued on or after September 17,
 2012. See 37 CFR 1.703 (2012-09-17 thru 2013-03-31) or 37 CFR 1.703
 (pre-2012-09-17) for paragraph (a)(1) applicable to patents
 granted before January 14, 2013. See 37 CFR 1.703 (pre-2012-09-17) for
 paragraphs (b)(4) and (e) that apply if the notice of allowance was issued before
 September 17, 2012.] 

 
 37 CFR 1.703 Period of adjustment of patent term due to examination delay. 

 
 (a) The period of adjustment under § 1.702(a) 
 is the sum of the following periods: 
 
 (1) The number of days, if any, in the period beginning on the
 day after the date that is fourteen months after the date on which the
 application was filed under 35 U.S.C. 111(a) or the
 date the national stage commenced under 35 U.S.C. 371(b) or
 (f) in an international application and ending on the
 date of mailing of either an action under 35 U.S.C.
 132 , or a notice of allowance under 35 U.S.C.
 151 , whichever occurs first;
 

 (2) The number of days, if any, in the period beginning on the
 day after the date that is four months after the date a reply under
 §
 1.111 was filed and ending on the date of mailing of
 either an action under 35 U.S.C. 132 , or a
 notice of allowance under 35 U.S.C. 151 , whichever
 occurs first;
 

 (3) The number of days, if any, in the period beginning on the
 day after the date that is four months after the date a reply in compliance
 with §
 1.113(c) was filed and ending on the date of mailing
 of either an action under 35 U.S.C. 132 , or a
 notice of allowance under 35 U.S.C. 151 , whichever
 occurs first;
 

 (4) The number of days, if any, in the period beginning on the
 day after the date that is four months after the date an appeal brief in
 compliance with § 41.37 was filed and
 ending on the date of mailing of any of an examiner’s answer under
 §
 41.39 , an action under 35 U.S.C.
 132 , or a notice of allowance under 35 U.S.C.
 151 , whichever occurs first;
 

 (5) The number of days, if any, in the period beginning on the
 day after the date that is four months after the date of a final decision by
 the Patent Trial and Appeal Board or by a Federal court in an appeal under
 35
 U.S.C. 141 or a civil action under 35 U.S.C.
 145 or 146 where at least one
 allowable claim remains in the application and ending on the date of mailing
 of either an action under 35 U.S.C. 132 or a
 notice of allowance under 35 U.S.C. 151 , whichever
 occurs first; and
 

 (6) The number of days, if any, in the period beginning on the
 day after the date that is four months after the date the issue fee was paid
 and all outstanding requirements were satisfied and ending on the date a
 patent was issued.
 

 
 

 (b) The period of adjustment under § 1.702(b) 
 is the number of days, if any, in the period beginning on the day after the date
 that is three years after the date on which the application was filed under
 35 U.S.C.
 111(a) or the national stage commenced under
 35 U.S.C.
 371(b) or (f) in an international application and ending on
 the date a patent was issued, but not including the sum of the following
 periods:
 
 (1) The number of days, if any, in the period beginning on the
 date on which any request for continued examination of the application under
 35
 U.S.C. 132(b) was filed and ending on the date of
 mailing of the notice of allowance under 35 U.S.C. 151 ;
 

 (2)
 
 (i) The number of days, if any, in the period beginning
 on the date an interference or derivation proceeding was instituted to
 involve the application in the interference or derivation proceeding
 under 35 U.S.C. 135(a) 
 and ending on the date that the interference or derivation proceeding
 was terminated with respect to the application; and
 

 (ii) The number of days, if any, in the period beginning
 on the date prosecution in the application was suspended by the Office
 due to interference or derivation proceedings under 35 U.S.C.
 135(a) not involving the application and ending
 on the date of the termination of the suspension; 
 

 
 

 (3)
 
 (i) The number of days, if any, the application was
 maintained in a sealed condition under 35 U.S.C.
 181 ;
 

 (ii) The number of days, if any, in the period beginning
 on the date of mailing of an examiner's answer under §
 41.39 in the application under secrecy order and
 ending on the date the secrecy order was removed;
 

 (iii) The number of days, if any, in the period beginning
 on the date applicant was notified that an interference or derivation
 proceeding under 35 U.S.C. 135(a) 
 would be instituted but for the secrecy order and ending on the date
 the secrecy order was removed; and
 

 (iv) The number of days, if any, in the period beginning
 on the date of notification under § 5.3(c) of this
 chapter and ending on the date of mailing of the notice of allowance
 under 35 U.S.C. 151 ;
 and, 
 

 
 

 (4) The number of days, if any, in the period beginning on the
 date on which jurisdiction over the application passes to the Patent Trial
 and Appeal Board under § 41.35(a) of this
 chapter and ending on the date that jurisdiction by the Patent Trial and
 Appeal Board ends under § 41.35(b) of this
 chapter or the date of the last decision by a Federal court in an appeal
 under 35 U.S.C. 141 or civil action under 35 U.S.C.
 145 , whichever is later.
 

 
 

 (c) The period of adjustment under § 1.702(c) 
 is the sum of the following periods, to the extent that the periods are not
 overlapping:
 
 (1) The number of days, if any, in the period beginning on the
 date an interference or proceeding was instituted to involve the application
 in the interference or derivation proceeding under 35 U.S.C.
 135(a) and ending on the date that the interference or
 derivation proceeding was terminated with respect to the application; and
 
 

 (2) The number of days, if any, in the period beginning on the
 date prosecution in the application was suspended by the Office due to
 interference or derivation proceedings under 35 U.S.C.
 135(a) not involving the application and ending on the
 date of the termination of the suspension.
 

 
 

 (d) The period of adjustment under § 1.702(d )
 is the sum of the following periods, to the extent that the periods are not
 overlapping: 
 
 (1) The number of days, if any, the application was maintained
 in a sealed condition under 35 U.S.C. 181 ; 
 

 (2) The number of days, if any, in the period beginning on the
 date of mailing of an examiner’s answer under §
 41.39 of this title in the application under secrecy
 order and ending on the date the secrecy order was removed; 
 

 (3) The number of days, if any, in the period beginning on the
 date applicant was notified that an interference or derivation proceeding
 would be instituted but for the secrecy order and ending on the date the
 secrecy order was removed; and
 

 (4) The number of days, if any, in the period beginning on the
 date of notification under § 5.3(c) of this chapter
 and ending on the date of mailing of the notice of allowance under
 35
 U.S.C. 151 .
 

 
 

 (e) The period of adjustment under §
 1.702(e) is the sum of the number of days, if any, in the
 period beginning on the date on which jurisdiction over the application passes to
 the Patent Trial and Appeal Board under § 41.35(a) of this chapter and
 ending on the date of a final decision in favor of applicant by the Patent Trial
 and Appeal Board or a Federal court in an appeal under 35 U.S.C.
 141 or a civil action under 35 U.S.C.
 145 .
 

 (f) The adjustment will run from the expiration date of the patent as
 set forth in 35
 U.S.C. 154(a)(2) . To the extent that periods of delay
 attributable to the grounds specified in § 1.702 overlap, the period of
 adjustment granted under this section shall not exceed the actual number of days
 the issuance of the patent was delayed. The term of a patent entitled to
 adjustment under § 1.702 and this section shall be adjusted for the sum of
 the periods calculated under paragraphs (a) through (e) of this section, to the
 extent that such periods are not overlapping, less the sum of the periods
 calculated under § 1.704 . The date indicated on any certificate of mailing
 or transmission under § 1.8 shall not be taken into
 account in this calculation.
 

 (g) No patent, the term of which has been disclaimed beyond a
 specified date, shall be adjusted under § 1.702 and this section
 beyond the expiration date specified in the disclaimer.
 

 
 

 37 CFR
 1.703 specifies the period of adjustment if a patent is entitled to
 patent term adjustment under 35 U.S.C. 154(b)(1) and
 37 CFR
 1.702 . When a period is indicated (in 37 CFR 1.703 or
 1.704 ) as “beginning” on a particular day, that day is included in
 the period, in that such day is “day one” of the period and not “day zero.” For example, a
 period beginning on April 1 and ending on April 10 is ten (and not nine) days in
 length.
 

 35 U.S.C. 154(b)(1)(A)
 and (B) provide for an adjustment of one day for each day after the
 end of the period set forth in 35 U.S.C. 154(b)(1)(A)(i), (ii), (iii), (iv), and
 (B) until the prescribed action is taken, whereas 35 U.S.C.
 154(b)(1)(C) provides for an adjustment of one day for each day of
 the pendency of the proceeding, order, or review prescribed in 35 U.S.C. 154(b)(1)(C)(i) through
 (iii) . Therefore, the end of the period set forth in
 37 CFR
 1.703(a) and 1.703(b) (which correspond to
 35 U.S.C. 154(b)(1)(A)
 and (B) ) is “day zero” (not “day one”) as to the period of
 adjustment, whereas the first day of the proceeding, order, or review set forth in
 37 CFR
 1.703(c) , 1.703(d) , and 1.703(e) (which
 correspond to 35 U.S.C.
 154(b)(1)(C)(i) through (iii) ) is “day one” of the period of
 adjustment.
 

 I. PERIODS OF ADJUSTMENT 37 CFR
 1.703(a) pertains to 35 U.S.C. 154(b)(1)(A) and indicates
 that the period of adjustment under 37 CFR 1.702(a) is the sum of the
 periods specified in 37 CFR 1.703(a)(1) through 37 CFR 1.703(a)(6) .
 

 A. 37 CFR 1.703(a)(1) – Longer
 Than Fourteen Months to Receive First Action 37 CFR
 1.703(a)(1) pertains to the provisions of 35 U.S.C.
 154(b)(1)(A)(i) and specifies that the period is the number of
 days, if any, beginning on the date after the day that is fourteen months after the
 date on which the application was filed under 35 U.S.C. 111(a) or fulfilled the
 requirements of 35
 U.S.C. 371 in an international application and ending on the
 mailing date of either an action under 35 U.S.C. 132 , or a notice of
 allowance under 35
 U.S.C. 151 , whichever occurs first. For purposes of
 35 U.S.C.
 154(b)(1)(A)(i)(II) in effect prior to enactment of the AIA
 Technical Corrections Act, an international application fulfills the requirements of
 35 U.S.C.
 371 on the date of commencement of the national stage under
 35 U.S.C. 371(b)
 or (f) , or the date the application fulfills the requirements
 of 35 U.S.C.
 371(c) if that date is later than the date of commencement of
 the national stage under 35 U.S.C. 371(b) or (f) . In other
 words, the requirements of 35 U.S.C. 371 are met when
 applicant has met all of the requirements of 35 U.S.C. 371(c) and, unless
 applicant requests early processing under 35 U.S.C. 371(f) , the time limit
 set forth in the applicable one of PCT Articles 22 and
 39 has expired. Accordingly, the requirements of
 35 U.S.C.
 371 are met when the Office can begin examination of the patent
 application. If, for example, an applicant files the required oath or declaration
 ( 35 U.S.C.
 115 ) and any necessary English translation
 after the expiration of the time limit set forth in
 Article
 22 of the PCT or the time limit under Article 39 of
 the PCT, the date the requirements of 35 U.S.C. 371 are met is the date
 the requirements of 35 U.S.C. 371(c) are met. If, however, an applicant files the
 required declaration (or oath), filing fee, and any required English translation
 before the expiration of the relevant PCT Article 22 
 or Article
 39 time period, but does not request early processing under
 35 U.S.C.
 371 , the requirements of 35 U.S.C. 371 will be met once
 the applicable time period has expired. If the expiration of the thirty-month period
 falls on a weekend or a federal holiday, the application will commence on the next
 business day pursuant to PCT Rule 80.5 . See
 Actelion Pharm. v. Matal, 881 F.3d 1339, 125 USPQ2d 1585, 1591
 (Fed. Cir. 2018). An applicant can commence the national stage in an international
 application earlier than thirty months by making an express request under
 35 U.S.C.
 371(f) . The request under 35 U.S.C. 371(f) must be
 expressly and clearly stated. The request can made by checking the appropriate box on
 form PTO-1390 (TRANSMITTAL LETTER TO THE UNITED STATES DESIGNATED/ELECTED OFFICE
 (DO/EO/US) CONCERNING A SUBMISSION UNDER 35 U.S.C. 371). Use of form PTO-1390 is
 optional. However, if an applicant uses the form and fails to check the appropriate
 box to request early processing, the early processing request may not be recognized
 unless the request under 35 U.S.C. 371(f) is clearly and
 explicitly stated in the national stage papers. A general statement that the
 applicant “earnestly solicits early examination and allowance of these claims” in a
 remarks section is not sufficient, by itself, to request early processing under
 35 U.S.C.
 371(f) . See Actelion Pharm. v. Matal, 881
 F.3d 1339, 125 USPQ2d 1585, 1590 (Fed. Cir. 2018). 
 

 For patents issuing from international application
 that are granted on or after January 14, 2013, 37 CFR
 1.703(a)(1) in effect on April 1, 2013 applies. The AIA
 Technical Corrections Act and the changes to 37 CFR
 1.703(a)(1) revised the date that begins the fourteen-month
 measurement from the date on which the international application fulfilled the
 requirements of 35
 U.S.C. 371 to the date of commencement of the national stage
 under 35 U.S.C.
 371 . The change to 35 U.S.C. 154(b)(1)(A)(i)(II) 
 means that the time period will begin sooner in international applications where the
 inventor does not file the inventor’s oath or declaration ( 35 U.S.C.
 371(c)(4) ) or other requirements at the time of the
 commencement.
 

 A written restriction requirement, a written election of species
 requirement, a requirement for information under 37 CFR 1.105 , an action under
 Ex parte Quayle, 25 USPQ 74, 1935 C.D. 11, 453 O.G. 213 (Comm’r
 Pat. 1935), and a notice of allowability (PTOL-37) are each an action issued as a
 result of the examination conducted pursuant to 35 U.S.C. 131 . As such, each of
 these Office actions is a notification under 35 U.S.C. 132 . 
 

 In particular, courts have found that written
 restriction requirements are notifications under 35 U.S.C. 132 . See
 Pfizer Inc. v. Lee, 811 F.3d 466, 117 USPQ 1781, 1786 (Fed.
 Cir. 2016) (The court found an initial written restriction requirement, which was
 withdrawn and reissued by the examiner, satisfied the notice requirement of
 35 U.S.C.
 132 because “the initial restriction requirement placed the
 applicants on notice of ‘the broad statutory basis for [the rejection of their]
 claims’” (quoting Chester v. Miller, 906 F.2d 1574, 1578, 15
 USPQ2d 1333 (Fed. Cir. 1990)). See also Idorsia Pharm., Ltd. v.
 Iancu, 811 Fed. App’x 650, 2020 USPQ2d 10498 (Fed. Cir. 2020) (holding
 that a written restriction requirement satisfied the statutory notice requirement of
 35 U.S.C.
 132 for purposes of the 14-month deadline under
 35 U.S.C.
 154(b)(1)(A)(i) , even when superseded and replaced by a
 subsequent corrected restriction requirement, because it was sufficiently informative
 to allow the patent applicant to counter the grounds for rejection). In considering
 whether a restriction requirement under 35 U.S.C. 121 was appealable
 under 35
 U.S.C. 134 , the Court of Customs and Patent Appeals (CCPA)
 noted that: (1) 35 U.S.C. 121 denoted its restriction procedure as a
 ‘‘requirement’’; (2) 35 U.S.C. 132 stated that the
 Commissioner shall give notice to the applicant whenever ‘‘any claim for a patent is
 rejected, or any objection or requirement made’’; and (3) 35 U.S.C.
 134 provided for an appeal only by an applicant whose claims
 have been ‘‘twice rejected.’’ See In re Hengehold, 440 F.2d 1395,
 1402–03, 169 USPQ 473,479 (CCPA 1971). Thus, the CCPA concluded that Congress
 intended to differentiate between objections and requirements ( 35 U.S.C. 132 )
 and actual rejections of claims ( 35 U.S.C. 132 ) and made appeal
 applicable only to the latter. See Hengehold, 440 F.2d at 1403,
 169 USPQ at 479. Since the CCPA cited with approval the "requirement" language of
 35 U.S.C.
 121 and evaluated rejections, objections, and requirements
 together under 35
 U.S.C. 132 when discussing and differentiating among them to
 determine whether a restriction requirement was appealable under 35 U.S.C.
 134 , the CCPA must have considered a restriction requirement to
 be a requirement under 35 U.S.C. 132 . In other words,
 the CCPA’s analysis determined that the making of a written restriction (or election)
 requirement is a notification under 35 U.S.C. 132 . See also
 Digital Equipment Corp. v. Diamond, 653 F.2d 701, 713 n.13, 210
 USPQ 521, 535–36 n.13 (1st Cir. 1981) ( 35 U.S.C. 132 when noting that
 the terms ‘‘requirement’’ and ‘‘objection’’ are distinct from ‘‘rejection’’ and as
 such, objections were not appealable under 35 U.S.C. 134 ). In addition, the
 Office has long considered a written restriction requirement containing no action on
 the merits to be a notice under 35 U.S.C. 132 . For example,
 MPEP §
 710.02(b) instructs examiners to set a shortened statutory
 period for reply of two months for a written restriction requirement containing no
 action on the merits under the authority given by 35 U.S.C.
 133 . 35 U.S.C. 133 would not apply to
 the period for reply to a written restriction requirement, if a written restriction
 requirement containing no action on the merits is not a notice under
 35 U.S.C.
 132 . 
 

 Office notices and letters issued as part of the
 pre-examination processing of an application are not notices issued as a result of an
 examination conducted pursuant to 35 U.S.C. 131 , and thus are not
 notifications under 35 U.S.C. 132 . Examples of such pre-examination processing
 notices are: a Notice of Incomplete Nonprovisional Application, a Notice of Omitted
 Item(s) in a Nonprovisional Application, a Notice to File Missing Parts of
 Application, an Information Notice to Applicant, a Notice to File Corrected
 Application Papers Filing Date Granted, or a Notice to Comply with Requirements for
 Patent Applications Containing Nucleotide and/or Amino Acid Sequence Disclosures.
 

 B. 37 CFR 1.703(a)(2) – Longer
 Than Four Months to Receive Action After a Reply under 35 U.S.C.
 111 37 CFR
 1.703(a)(2) pertains to the provisions of 35 U.S.C.
 154(b)(1)(A)(ii) and specifies that the period is the number of
 days, if any, beginning on the day after the date that is four months after the date
 a reply under 37
 CFR 1.111 was filed and ending on the mailing date of either an
 action under 35
 U.S.C. 132 , or a notice of allowance under 35 U.S.C. 151 ,
 whichever occurs first.
 

 C. 37 CFR 1.703(a)(3) – Longer
 Than Four Months to Receive Action After a Reply in Compliance 35 U.S.C.
 113(c) 37 CFR
 1.703(a)(3) also pertains to the provisions of
 35 U.S.C.
 154(b)(1)(A)(ii) and specifies that the period is the number of
 days, if any, beginning on the day after the date that is four months after the date
 a reply in compliance with 37 CFR 1.113(c) was filed and
 ending on the date of mailing of either an action under 35 U.S.C. 132 ,
 or a notice of allowance under 35 U.S.C. 151 , whichever occurs
 first. A reply under 37 CFR 1.113 is a reply to a
 final Office action, and a reply in compliance with 37 CFR 1.113 is
 a reply that cancels all of the rejected claims and removes all outstanding
 objections and requirements or otherwise places the application in condition for
 allowance. Any amendment after final that does not cancel all of the rejected claims
 and remove all outstanding objections and requirements or otherwise place the
 application in condition for allowance is not a reply in compliance with
 37 CFR
 1.113(c) and will not trigger the four-month requirement under
 37
 CFR 1.703(a)(3) for the Office to act on the after-final
 reply.
 

 D. 37 CFR 1.703(a)(4) – Longer
 Than Four Months to Receive Action After an Appeal Brief in Compliance with 37
 CFR 41.37 37 CFR
 1.703(a)(4) also pertains to the provisions of
 35 U.S.C.
 154(b)(1)(A)(ii) and specifies that the period is the number of
 days, if any, beginning on the day after the date that is four months after the date
 an appeal brief in compliance with 37 CFR 41.37 was filed and ending
 on the mailing date of any of an examiner’s answer under 37 CFR 41.39 ,
 an action under 35
 U.S.C. 132 , or a notice of allowance under 35 U.S.C. 151 ,
 whichever occurs first. As discussed below, the phrase “the date on which” an “appeal
 was taken” in 35
 U.S.C. 154(b)(1)(A)(ii) means the date on which an appeal brief
 (and not a notice of appeal) was filed. The phrase “appeal brief in compliance with
 37 CFR
 41.37 ” requires that: (1) the appeal brief fee
 ( 37
 CFR 1.17(b) ) be paid ( 37 CFR 41.20 ); and (2) the appeal
 brief complies with the requirements in 37 CFR 41.37(c) . However, for
 applications in which the appeal brief was filed on or after March 19, 2013, the fee
 required to accompany the appeal brief is set to zero dollars in amended
 37 CFR
 41.37(a) , and accordingly, the phrase “appeal brief in
 compliance with 37
 CFR 41.37 ” no longer requires the filing of the appeal brief
 fee. See Setting and Adjusting Patent Fees, 78 FR 4212, 4291
 (January 18, 2013).
 

 E. 37 CFR 1.703(a)(5) – Longer
 Than Four Months to Receive Action After a Final Decision by the Board or a
 Federal Court 37 CFR
 1.703(a)(5) pertains to the provisions of 35 U.S.C.
 154(b)(1)(A)(iii) and specifies that the period is the number
 of days, if any, beginning on the day after the date that is four months after the
 date of a final decision by the Patent Trial and Appeal Board (Board) or by a federal
 court in an appeal under 35 U.S.C. 141 or a civil action
 under 35 U.S.C.
 145 or 146 , where at least one allowable
 claim remains in the application and ending on the mailing date of either an action
 under 35 U.S.C.
 132 , or a notice of allowance under 35 U.S.C. 151 ,
 whichever occurs first. 
 

 The phrase “allowable claims remain in the application” for
 purposes of 35
 U.S.C. 154(b)(1)(A)(iii) means that after the decision there is
 at least one pending claim (for purposes of statutory construction, “words importing
 the plural include the singular” (1 U.S.C. 1)) that is not withdrawn from
 consideration and is not subject to a rejection, objection, or other requirement.
 This applies in the following situations: (1) at least one claim is allowable (not
 merely objected to) at the time the examiner’s answer is mailed and is not canceled
 before, or made subject to a rejection as a result of, the appellate review; or (2)
 when all of the rejections applied to at least one claim are reversed, and such claim
 is not made subject to a rejection, as a result of the appellate review. For example: 
 

 
 (A) If claims 1 and 2 (both independent) are pending, the decision
 affirms the rejection of claim 1, and claim 2 was indicated as allowable prior
 to the appeal, then “allowable claims remain in the application” for purposes
 of 35 U.S.C.
 154(b)(1)(A)(iii) . 
 

 (B) If claims 1 and 2 are pending, the decision affirms the
 rejection of claim 1, and claim 2 was objected to by the examiner prior to the
 appeal as being allowable except for its dependency from claim 1, “allowable
 claims” do not “remain in the application” for purposes of 35 U.S.C.
 154(b)(1)(A)(iii) (claim 2 is not allowable because there
 is an outstanding objection to it). 
 

 (C) If claims 1 and 2 are pending (claim 2 either depending from
 claim 1 or is an independent claim), and the decision affirms the rejection of
 claim 1 and reverses the rejection of claim 2, then “allowable claims remain in
 the application” for purposes of 35 U.S.C. 154(b)(1)(A)(iii) 
 (claim 2 is “allowable” within the meaning of 37 CFR
 1.703(a)(5) ) because there is no outstanding objection or
 requirement as to it (see MPEP § 1214.06 , subsection
 II). 
 

 
 For a Board decision to be a ‘‘decision by the Patent
 Trial and Appeal Board under [35 U.S.C.] 134 ’’ within the
 meaning of 35
 U.S.C. 154(b)(1)(A)(iii) (and 37 CFR
 1.703(a)(5) ), the decision must sustain or reverse the
 rejection(s) of the claim(s) on appeal, or in limited circumstances as further
 described below, a remand may be deemed a decision for purposes of 37 CFR
 1.703(a)(5) . For a Board decision to be a ‘‘decision by the
 Patent Trial and Appeal Board under [35 U.S.C.] 135 ’’within the
 meaning of 35
 U.S.C. 154(b)(1)(A)(iii) (and 37 CFR
 1.703(a)(5) ), the decision must include a decision on the
 patentability of the claims, derivation, or priority of invention. 
 

 If an application is remanded by a panel and the
 remand is the last action by a panel of the Board prior to the mailing of a notice of
 allowance under 35
 U.S.C. 151 , the remand generally shall be considered a decision
 by the Patent Trial and Appeal Board as that phrase is used in 35 U.S.C.
 154(b)(1)(A)(iii) , a decision in the review reversing an
 adverse determination of patentability as that phrase is used in 35 U.S.C.
 154(b)(1)(C)(iii) , and a final decision in favor of the
 applicant as that phrase is used in 37 CFR 1.703(e) . However, a
 remand by a panel of the Board shall not be considered a decision in the review
 reversing an adverse determination of patentability, as provided in this paragraph,
 if there is filed a request for continued examination under 35 U.S.C.
 132(b) that was not first preceded by the mailing, after the
 remand, of at least one of an action under 35 U.S.C. 132 or a notice of
 allowance under 35
 U.S.C. 151 .
 

 The phrase ‘‘final decision’’ in 37 CFR
 1.703(a)(5) means that: (1) the decision is the last decision
 in the review by the Board (or by a federal court); and (2) the decision does not
 require further action by the applicant to avoid termination of proceedings as to the
 rejected claims. Thus, a Board decision containing a new ground of rejection under
 37 CFR
 41.50(b) requires action by the applicant to avoid termination
 of proceedings as to the rejected claims and is, thus, is not considered a ‘‘final
 decision’’ for purposes of 37 CFR 1.703(a)(5) . The phrase
 ‘‘final decision,’’ however, does not require that the decision be final for purposes
 of judicial review ( e.g., a Board decision reversing the rejection
 of all of the claims on appeal is not ‘‘final’’ for purposes of judicial review, but
 (absent a subsequent decision by the Board) is a ‘‘final decision’’ for purposes of
 37
 CFR 1.703(a)(5) ).
 

 F. 37 CFR 1.703(a)(6) – Longer Than
 Four Months to Issue Patent After Payment of the Issue
 Fee 37 CFR
 1.703(a)(6) pertains to the provisions of 35 U.S.C.
 154(b)(1)(A)(iv) and specifies that the period is the number of
 days, if any, beginning on the day after the date that is four months after the date
 the issue fee was paid and all outstanding requirements were satisfied and ending on
 the date the patent was issued. Thus, the period of adjustment under
 35 U.S.C.
 154(b)(1)(A)(iv) , if any, is ascertained by looking back from
 the issue date to the most recent time at which the issue fee or another requirement
 was outstanding, determining the succeeding date on which the issue fee was paid and
 all outstanding requirements were satisfied, and measuring the number of days, if
 any, in the period beginning on the day after the date that is four months after such
 date the issue fee was paid and all outstanding requirements were satisfied and
 ending on the date a patent was issued. The date the issue fee was paid and all
 outstanding requirements were satisfied is the later of the date the issue fee was
 paid or the date all outstanding requirements were satisfied. Note that the filing of
 a priority document (and processing fee) is not considered an outstanding requirement
 under 35 U.S.C.
 154(b)(1)(A)(iv) and 37 CFR 1.703(a)(6) because, if
 the priority document is not filed, the patent simply issues without the priority
 claim (the application is not abandoned). If prosecution in an application is
 reopened after allowance (see MPEP § 1308 ), all outstanding
 requirements are not satisfied until the application is again in condition for
 allowance as indicated by the issuance of a new notice of allowance under
 35 U.S.C.
 151 (see MPEP § 1308 ) and the form PTOL-85(b)
 from the latest notice of allowance is returned to the Office along with any
 outstanding requirements, such as payment of any additional fees owed and/or
 additional required drawings to be submitted by the applicant. For example, if
 prosecution in an application is reopened after a notice of allowance as the result
 of an applicant filing a request for continued examination, the date on which the
 issue fee was paid and all outstanding requirements were satisfied is the date on
 which the Issue Fee Transmittal Form (PTOL-85(b)) from the ultimate notice of
 allowance under 35
 U.S.C. 151 is returned to the Office (or a later date if there
 remain additional outstanding requirements, such as payment of any additional fees
 owed or required drawings to be submitted). See MPEP § 2732 .
 

 Applicant is also provided patent term adjustment for
 Office delay under 37 CFR 1.702(a)(2) when the
 Office fails to act on a request for continued examination within four months of the
 filing of the request for continued examination. The period of adjustment for Office
 delay, if any, begins on the date that is the day after the date that is four months
 from the filing of the request for continued examination and ends on the date of
 mailing of the date of an action under 35 U.S.C. 132 or a notice of
 allowance under 35
 U.S.C. 151 .
 

 II. THREE-YEAR PENDENCY
 ADJUSTMENT 37 CFR
 1.703(b) pertains to the provisions of 35 U.S.C.
 154(b)(1)(B) and indicates that the period of adjustment under
 37 CFR
 1.702(b) is the number of days, if any, in the period beginning on
 the day after the date that is three years after the actual filing date of the
 application and ending on the date a patent was issued. 37 CFR 1.703(b) 
 also sets forth the limitations on patent term adjustment specified in 35 U.S.C. 154(b)(1)(B)(i) and
 (ii) . Specifically, 37 CFR 1.703(b) provides that the
 period of adjustment of the term of a patent shall not include the period equal to the
 sum of the following periods: (1) the period of pendency consumed by continued
 examination of the application under 35 U.S.C. 132(b) ( 35
 U.S.C. 154(b)(1)(B)(i) ); (2) the period of pendency consumed by
 interference or derivation proceedings ( 35 U.S.C. 154(b)(1)(B)(ii) ); (3) the
 period of pendency consumed by imposition of a secrecy order ( 35 U.S.C.
 154(b)(1)(B)(ii) ); and (4) the period of pendency consumed by
 appellate review under 35 U.S.C. 134 , 141 , 145 , whether
 successful or unsuccessful ( 35 U.S.C. 154(b)(1)(B)(ii) ). The
 provisions of 35
 U.S.C. 154(b)(1)(B)(iii) concerning the period of pendency
 consumed by delays in the processing of the application requested by the applicant are
 treated in 37 CFR
 1.704 as such applicant delays are also circumstances constituting
 a failure of an applicant to engage in reasonable efforts to conclude processing or
 examination of an application.
 

 The U.S. Court of Appeals for the Federal Circuit
 (Federal Circuit) decided that, with respect to the provisions of 35 U.S.C.
 154(b)(1)(B)(i) , that: (1) any time consumed by continued
 examination under 35
 U.S.C. 132(b) is subtracted in determining the extent to which the
 period defined in 35
 U.S.C. 154(b)(1)(B) exceeds three years, regardless of when the
 continued examination under 35 U.S.C. 132(b) was initiated; but
 (2) the time consumed by continued examination under 35 U.S.C. 132(b) does not include
 the time after a notice of allowance is mailed, unless the Office actually resumes
 examination of the application after allowance. See Novartis AG v.
 Lee, 740 F.3d 593, 109 USPQ2d 1385 (Fed. Cir. 2014). Where an interference
 has been declared following the filing of a request for continued examination, the
 period after termination of the interference through the mailing of the notice of
 allowance constitutes time consumed by continued examination requested by the applicant
 and is excluded from the three year calculation under 35 U.S.C.
 154(b)(1)(B) . See Mayo Found. for Med. Educ. &
 Research v. Iancu, 938 F.3d 1343, 2019 USPQ2d 346079 (Fed. Cir. 2019). In
 one instance, a court found that the time consumed by continued examination did not
 begin on the date of filing of the request for continued examination because the Office
 had failed to recognize that it had received any request from the applicant to begin
 continued examination and erroneously had determined the application to be abandoned.
 Under these facts, the court found that the Office may consider factors such as when the
 Office acknowledges receipt of the request for continued examination, or when the
 request for continued examination is forwarded to the examiner, to determine when the
 period excluded as time consumed by continued examination begins. See Ariad
 Pharm. Inc v. Matal, 283 F. Supp. 3d 503 (E.D. Va. 2018).
 

 Effective January 9, 2015, 37 CFR
 1.703(b)(1) was amended to provide that the time consumed by
 continued examination of the application under 35 U.S.C. 132(b) is the number of
 days, if any, in the period beginning on the date on which any request for continued
 examination of the application under 35 U.S.C. 132(b) was filed and
 ending on the date of mailing of the notice of allowance under 35 U.S.C. 151 . The
 changes to 37 CFR 1.703(b)(1) apply to any
 patent granted before, on, or after January 9, 2015. The time period between a request
 for continued examination and a notice of allowance is “time consumed by continued
 examination of the application requested by the applicant under section 132(b) ”
 regardless of whether the Office issues an Office action under 35 U.S.C. 132 .
 Thus, any period of examination after the mailing of a notice of allowance resulting
 from the filing of a subsequent request for continued examination would also be
 considered “time consumed by continued examination,” but a period of examination after
 the mailing of a notice of allowance resulting from the Office sua
 sponte reopening prosecution would not be considered “time consumed by
 continued examination” (unless the applicant subsequently files a request for continued
 examination). 
 

 For example, if a first request for continued examination
 is filed before a notice of allowance has been mailed and a second request for continued
 examination is filed after a notice of allowance has been mailed, the time consumed by
 continued examination of the application under 35 U.S.C. 132(b) is the number of
 days in the period beginning on the date on which the first request for continued
 examination was filed and ending on the date of mailing of the notice of allowance
 following the first request for continued examination, plus the number of days in the
 period beginning on the date on which the second request for continued examination was
 filed and ending on the date of mailing of the notice of allowance following the second
 request for continued examination. Note that the “time consumed by continued
 examination” as measured by 37 CFR 1.703(b)(1) may include
 non-contiguous periods if the applicant files a subsequent request for continued
 examination after a notice of allowance is mailed.
 

 In contrast, if a second request for continued examination
 is filed without a notice of allowance having been mailed between the filing of the
 first and second requests for continued examination and a notice of allowance is mailed
 after the second request for continued examination, the time consumed by continued
 examination of the application under 35 U.S.C. 132(b) is the number of
 days in the period beginning on the date on which the first request for continued
 examination was filed and ending on the date of mailing of the notice of allowance.
 35 U.S.C.
 154(b)(1)(B)(i) provides that the period under 35 U.S.C.
 154(b)(1)(B) does not include “ any time consumed by
 continued examination of the application requested by the applicant under
 section
 132(b) ” (emphasis added). Therefore, a second or subsequent
 request for continued examination will be treated the same as the first request for
 continued examination with respect to period between the filing of the request for
 continued examination and a notice of allowance being considered “time consumed by
 continued examination of the application requested by the applicant under
 section
 132(b) .” 
 

 The “time consumed by continued examination of the
 application requested by the applicant under section 132(b) ” is the number of
 days, if any, in the period beginning on the date on which a request for continued
 examination was filed and ending on the date of mailing of the notice of allowance
 (PTOL-85), regardless of whether the notice of allowability (PTOL-37) and notice of
 allowance (PTOL-85) are mailed or issued on different days, and also regardless of
 whether the Office has issued multiple consecutive notices of allowability (PTOL-37). As
 background, the Office issues a notice of allowability (PTOL-37) and a notice of
 allowance (PTOL-85) when an application is in condition for allowance. These notices are
 generally mailed or issued on the same day, but the notice of allowability (PTOL-37) and
 notice of allowance (PTOL-85) are occasionally mailed or issued on different days. The
 Office also occasionally mails or issues multiple consecutive notices of allowability
 (PTOL-37) (e.g., a notice of allowability and then a supplemental notice of
 allowability) and rarely issues multiple consecutive notices of allowance (e.g., a
 notice of allowance (PTOL-85) and then a supplemental notice of allowance (PTOL-85)). In
 the rare instance in which the Office issues multiple consecutive notices of allowance
 (PTOL-85), the “time consumed by continued examination of the application requested by
 the applicant under section 132(b) ” is the number of days, if any, in the period
 beginning on the date on which a request for continued examination was filed and ending
 on the date of mailing of the first notice of allowance (PTOL-85). 
 

 III. PERIODS OF ADJUSTMENT FOR INTERFERENCE OR
 DERIVATION 37 CFR
 1.703(c) pertains to the provisions of 35 U.S.C.
 154(b)(1)(C)(i) and indicates that the period of adjustment under
 37 CFR
 1.702(c) is the sum of the following periods (to the extent that
 such periods are not overlapping): (1) the number of days, if any, in the period
 beginning on the date an interference or derivation proceeding was instituted to involve
 the application in the interference or derivation proceeding and ending on the date that
 the interference or derivation proceeding was terminated with respect to the
 application; and (2) the number of days, if any, in the period beginning on the date
 prosecution in the application was suspended by the Office due to interference or
 derivation proceedings under 35 U.S.C. 135(a) not involving the
 application and ending on the date of the termination of the suspension.
 

 IV. PERIODS OF ADJUSTMENT FOR APPLICATIONS
 UNDER A SECRECY ORDER 37 CFR
 1.703(d) pertains to the provisions of 35 U.S.C.
 154(b)(1)(C)(ii) and indicates that the period of adjustment under
 37 CFR
 1.702(d) is the sum of the following periods (to the extent that
 such periods are not overlapping): (1) the number of days, if any, the application was
 maintained in a sealed condition under 35 U.S.C. 181 ; (2) the number of
 days, if any, in the period beginning on the date of mailing of an examiner’s answer
 under 37 CFR
 41.39 in the application under secrecy order and ending on the
 date the secrecy order was removed; (3) the number of days, if any, in the period
 beginning on the date applicant was notified that an interference or derivation
 proceeding under 35
 U.S.C. 135(a) would be instituted but for the secrecy order and
 ending on the date the secrecy order was removed; and (4) the number of days, if any, in
 the period beginning on the date of notification under 37 CFR 5.3(c) and
 ending on the date of mailing of the notice of allowance under 35 U.S.C. 151 and
 37 CFR
 1.311 .
 

 V. PERIODS OF ADJUSTMENT FOR SUCCESSFUL
 APPEAL 37 CFR
 1.703(e) pertains to the provisions of 35 U.S.C.
 154(b)(1)(C)(iii) and indicates that the period of adjustment
 under 37 CFR
 1.702(e) is the sum of the number of days, if any, in the period
 beginning on the date on which a jurisdiction over the application passes to the Patent
 Trial and Appeal Board under 37 CFR 41.35(a) or 37 CFR 41.31 if
 the notice of allowance was issued prior to September 17, 2012, and ending on the date
 of a final decision in favor of the applicant by the Board or by a federal court in an
 appeal under 35 U.S.C.
 141 or a civil action under 35 U.S.C. 145 .
 

 The Federal Circuit has held that the provisions of
 35 U.S.C.
 154(b)(1)(C)(iii) impose two requirements: that an adverse
 determination of patentability be reversed, and that the application reviewed in that
 appeal issue as a patent as a result of that reversal. SawStop Holding LLC v.
 Vidal, 48 F.4th 1355, 1361, 2022 USPQ2d 836 (Fed. Cir. 2022). In
 SawStop, the Board decision included a new ground of rejection
 without maintaining the examiner’s rejection of the claim, and therefore, the court
 determined there was no reversal of an adverse determination of patentability under
 35 U.S.C.
 154(b)(1)(C)(iii) because there was no substantive change in the
 patentability of the claim at issue as the claim remained unpatentable both before and
 after the appeal. Likewise, there is no reversal of an adverse determination of
 patentability under 35
 U.S.C. 154(b)(1)(C)(iii) if, in lieu of issuing an examiner’s
 answer, the examiner reopens prosecution after the filing of the appeal brief under
 37 CFR
 41.37 . See Chudik v. Hirshfeld, 987 F.3d 1033,
 2021 USPQ2d 149 (Fed. Cir. 2021). Furthermore, in order to issue as a patent as a result
 of the reversal, the claim that ultimately issues cannot differ substantively from the
 claim that was reviewed. See SawStop, 48 F.4th at 1362. “The plain
 language of ‘issued under a decision in the review’ means that at least one claim must
 ‘issue[] under’ the mandate of the appellate decision.” Id. “Because
 claim 11 … was subject to an adverse determination of patentability both before and
 after the appeal, and because the claim issued only after significant substantive
 post-appeal prosecution and amendment, we affirm the District Court's determination that
 the … patent did not ‘issue[] under a decision in the review reversing an adverse
 determination of patentability’ as that expression is used in 35 U.S.C. §
 154(b)(1)(C)(iii).” Id. at 1362-63.
 

 VI. DETERMINATION OF
 ADJUSTMENT 37 CFR
 1.703(f) indicates that the adjustment will run from the
 expiration date of the patent as set forth in 35 U.S.C. 154(a)(2) and also
 indicates that to the extent that periods of delay attributable to the grounds specified
 in 37 CFR
 1.702 overlap, the period of adjustment will not exceed the actual
 number of days the issuance of the patent was delayed ( 35 U.S.C.
 154(b)(2)(A) ). 35 U.S.C. 154(b)(2)(A) provides that
 "[t]o the extent that periods of delay attributable to grounds specified in
 [ 35 U.S.C.
 154(b)(1) ] overlap, the period of any adjustment granted under
 this subsection shall not exceed the actual number of days the issuance of the patent
 was delayed." The USPTO previously had interpreted this provision as covering situations
 in which a delay by the USPTO contributes to multiple bases for adjustment (the
 "pre-Wyeth" interpretation of 35 U.S.C. 154(b)(2)(A) ). See
 Explanation of 37 CFR 1.703(f) and of the United
 States Patent and Trademark Office Interpretation of 35 U.S.C.
 154(b)(2)(A) , 69 FR 34283 (June 21, 2004), 1284 OG 56
 (July 13, 2004). The United States Court of Appeals for the Federal Circuit, however,
 held that the USPTO's earlier interpretation of 35 U.S.C. 154(b)(2)(A) was
 erroneous, and that periods of delay overlap under 35 U.S.C. 154(b)(2)(A) only if the
 periods which measure the amount of adjustment under 35 U.S.C. 154(b)(1) occur on the
 same calendar day. See Wyeth v. Kappos, 591 F.3d 1364, 93 USPQ2d 1257
 (Fed. Cir. 2010). 
 

 37 CFR
 1.703(f) also specifically indicates that the term of a patent
 entitled to adjustment under 37 CFR 1.702 and 1.703 shall be
 adjusted for the sum of the periods calculated under 37 CFR 1.703(a) through (e) , to the
 extent that such periods are not overlapping, less the sum of the periods calculated
 under 37 CFR
 1.704 . 
 

 Moreover, 37 CFR 1.703(f) provides that the
 date indicated on any certificate of mailing or transmission under 37 CFR 1.8 shall
 not be taken into account in this calculation. The date indicated on a certificate of
 mailing is used only to determine whether the correspondence is timely (including
 whether any extension of the time and fee are required) so as to avoid abandonment of
 the application or termination or dismissal of proceedings. The actual date of receipt
 of the correspondence in the Office is used for all other purposes. See
 37 CFR
 1.8(a) . Thus, while the date indicated on any certificate of
 mailing or transmission under 37 CFR 1.8 will continue to be taken
 into account in determining timeliness, the date of filing ( 37 CFR 1.6 ) will
 be the date used in a patent term adjustment calculation. Applicant may wish to consider
 the use of the USPTO patent electronic filing system, the Priority Mail
 Express ® Post Office to Addressee service of the United
 States Postal Service ( 37 CFR 1.10 ) or facsimile transmission ( 37 CFR 1.6(d) ),
 when permitted, for replies to be accorded the earliest possible filing date for patent
 term adjustment calculations. Alternatively, applicant may choose to mail correspondence
 with sufficient time to ensure that the correspondence is received in the Office (and
 stamped with a date of receipt) before the expiration of the three-month period.
 Applicants are encouraged to check the USPTO patent electronic filing system to verify
 the date of deposit entered in One Patent Service Gateway (OPSG) for the correspondence.
 Applicants should contact the Office for correction of any such entries prior to the
 grant of the patent. At the time of the grant of the patent, the patent term adjustment
 calculation will be made with the dates in OPSG. Thereafter, a patent term adjustment
 accompanied by the requisite fee and statement or showing, will be necessary to have any
 reduction of patent term under 37 CFR 1.704 reinstated.
 

 Finally, 37 CFR 1.703(g) indicates that no
 patent, the term of which has been disclaimed beyond a specified date, shall be adjusted
 under 37 CFR
 1.702 and 1.703 beyond the expiration date
 specified in the disclaimer ( 35 U.S.C. 154(b)(2)(B) ).
 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 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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 03/09/2026 20:50:49