MPEP § 2701 — MPEP § 2701
Current through: 2022-07-01

2701-Patent Term 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2700 

 Section 2701 
 

 
 
 
 
 
 2701 Patent Term [R-01.2024]

 
 35 U.S.C. 154 
 Contents and term of patent; provisional rights. 

 
 (a) IN GENERAL.—
 
 *****

 (2) TERM.—Subject to the payment of fees under this title, such
 grant shall be for a term beginning on the date on which the patent issues
 and ending 20 years from the date on which the application for the patent
 was filed in the United States or, if the application contains a specific
 reference to an earlier filed application or applications under
 section 120 , 121 , 365(c) , or 386(c) from the date on
 which the earliest such application was filed.
 

 (3) PRIORITY.—Priority under section
 119 , 365(a) ,
 365(b) , 386(a) , or
 386(b) shall not be
 taken into account in determining the term of a patent.
 

 
 

 
 *****

 
 (c) CONTINUATION.—
 
 (1) DETERMINATION.—The term of a patent that is in force on or
 that results from an application filed before the date that is 6 months
 after the date of the enactment of the Uruguay Round Agreements Act shall be
 the greater of the 20-year term as provided in subsection (a), or 17 years
 from grant, subject to any terminal disclaimers.
 

 (2) REMEDIES.—The remedies of sections
 283 , 284 , and
 285 shall not apply to acts which —
 
 (A) were commenced or for which substantial investment
 was made before the date that is 6 months after the date of the
 enactment of the Uruguay Round Agreements Act; and
 

 (B) became infringing by reason of paragraph (1).

 
 

 (3) REMUNERATION.—The acts referred to in paragraph (2) may be
 continued only upon the payment of an equitable remuneration to the patentee
 that is determined in an action brought under chapter
 28 and chapter 29 (other than
 those provisions excluded by paragraph (2)).
 

 
 

 
 *****

 

 For applications filed on or after June 8, 1995, Section 532(a)(1) of the
 Uruguay Round Agreements Act (Public Law 103-465, 108 Stat. 4809 (1994)) amended
 35 U.S.C.
 154 to provide that the term of a patent (other than a design patent)
 begins on the date the patent issues and ends on the date that is twenty years from the
 date on which the application for the patent was filed in the United States or, if the
 application contains a specific reference to an earlier filed application or applications
 under 35 U.S.C.
 120 , 121 , or 365(c) , twenty years
 from the filing date of the earliest of such application(s). This patent term provision is
 referred to as the “twenty-year term.” Design patents have a term of fourteen years from
 the date of patent grant, except for any design patent issued from applications filed on or
 after May 13, 2015 (the date of entry into force of the 1999 Geneva Act of the Hague
 Agreement Concerning the International Registration of Industrial Designs (“Hague
 Agreement”) as to the United States) has a term of fifteen years from the date of patent
 grant (see Public Law 112-211). See 35 U.S.C. 173 and MPEP § 1505 . Under the
 Hague Agreement, qualified applicants may apply for design protection in the Contracting
 Parties to the Hague Agreement by filing a single, standardized international design
 application in a single language. Therefore, the term “design patents” includes patents
 issued from design applications filed under 35 U.S.C. 111 and international design
 applications filed under 35 U.S.C. 385 . The Patent Law Treaties
 Implementation Act of 2012, Public Law 112-211, which implemented the provisions of the
 Hague Agreement, amended 35 U.S.C. 154(a)(2) to delete "section 120, 121, or 365(c)" and to
 insert "section 120, 121, 365(c), or 386(c)" and 35 U.S.C. 154(a)(3) to delete "section
 119, 365(a), or 365(b)" and to insert "section 119, 365(a), 365(b), 386(a), or 386(b)."
 

 All patents (other than design patents) that were in force on June 8,
 1995, or that issued on an application that was filed before June 8, 1995, have a term that
 is the greater of the “twenty-year term” or seventeen years from the patent grant. See
 35 U.S.C.
 154(c) . A patent granted on an international application filed before
 June 8, 1995, and which entered the national stage under 35 U.S.C. 371 before,
 on or after June 8, 1995, will have a term that is the greater of seventeen years from the
 date of grant or twenty years from the international filing date or any earlier filing date
 relied upon under 35 U.S.C. 120 , 121 or 365(c) . The terms of
 these patents are subject to reduction by any applicable terminal disclaimers (discussed
 below).
 

 I. CONTINUING APPLICATIONS A patent granted on a continuation, divisional, or continuation-in-part
 application that was filed on or after June 8, 1995, will have a term which ends twenty
 years from the filing date of earliest application for which a benefit is claimed under
 35 U.S.C.
 120 , 121 , 365(c) , or
 386(c) regardless of whether the application for which a benefit
 is claimed under 35 U.S.C. 120 , 121 , or 365(c) was filed
 prior to June 8, 1995.
 

 II. INTERNATIONAL APPLICATIONS A patent granted on an international application filed on or after June
 8, 1995 and which enters the national stage under 35 U.S.C. 371 will have a term which
 ends twenty years from the filing date of the international application. A continuation
 or a continuation-in-part application claiming benefit under 35 U.S.C. 365(c) 
 of an international application filed under 35 U.S.C. 363 designating the United
 States will have a term which ends twenty years from the filing date of the parent
 international application.
 

 III. FOREIGN PRIORITY Foreign priority under 35 U.S.C. 119(a)-(d) ,
 365(a) , 365(b) , 386(a) ,
 or 386(b) is not considered in determining the term of a patent.
 Accordingly, an application claiming priority under 35 U.S.C. 365(a) , 365(b) ,
 386(a) , or 386(b) has a term which ends twenty
 years from the filing date of the application in the United States and not the prior
 international application or international design application.
 

 IV. DOMESTIC BENEFIT UNDER 35 U.S.C. 119(e) Domestic benefit under 35 U.S.C. 119(e) to one or more U.S.
 provisional applications is not considered in the calculation of the twenty-year term.
 See 35 U.S.C.
 154(a)(3) .
 

 V. EXPIRATION DATE OF PATENTS WITH TERMINAL DISCLAIMERS To determine the “original expiration date” of a patent subject to a
 terminal disclaimer, it is generally necessary to examine the language of the terminal
 disclaimer in the patent file history. If the disclaimer disclaims the terminal portion
 of the term of the patent which would extend beyond the expiration date of an earlier
 issued patent, then the expiration date of the earlier issued patent determines the
 expiration date of the patent subject to the terminal disclaimer. Before June 8, 1995,
 the terminal disclaimer date was printed on the face of the patent; the date was
 determined from the expected expiration date of the earlier issued patent based on a
 seventeen year term measured from grant. When 35 U.S.C. 154 was amended such that
 all patents (other than design patents) that were in force on June 8, 1995, or that
 issued on an application that was filed before June 8, 1995, have a term that is the
 greater of the “twenty year term” or seventeen years from the patent grant, the terminal
 disclaimer date as printed on many patents became incorrect. If the terminal disclaimer
 of record in the patent file disclaims the terminal portion of the patent subsequent to
 the full statutory term of a referenced patent (without identifying a specific date),
 then the date printed on the face of the patent is incorrect when the full statutory
 term of the referenced patent is changed as a result of 35 U.S.C. 154(c) .
 That is, the referenced patent’s “twenty year term” is longer than the seventeen year
 term. In such a case, a patentee may request a Certificate of Correction under
 37 CFR
 1.323 to correct the information printed on the face of the
 patent. See Bayer AG v. Carlsbad Tech., Inc., 298 F.3d 1377, 64
 USPQ2d 1045 (Fed. Cir. 2002). However, if the terminal disclaimer of record in the
 patent file disclaims the terminal portion of the patent subsequent to a specific date,
 without reference to the full statutory term of a referenced patent, then the expiration
 date is the date specified. But a patent term extension under 35 U.S.C. 156 may
 be applied to a patent that is subject to a terminal disclaimer. See Merck
 & Co. v. Hi-Tech Pharmacal Co., 482 F.3d 1317, 82 USPQ2d 1203 (Fed.
 Cir. 2007). In contrast, patent term adjustment under 35 U.S.C. 154(b) does not extend
 the patent term beyond the expiration date specified in the disclaimer. See
 35 U.S.C.
 154(b)(2)(B) and 37 CFR 1.703(g) .
 

 Several decisions related to disclaimers are posted in
 the Freedom of Information Act (FOIA) section of the USPTO website ( www.uspto.gov ).
 

 VI. PATENT TERM EXTENSIONS OR ADJUSTMENTS See MPEP
 § 2710 et seq. for patent term extensions or adjustments for delays within
 the USPTO under 35 U.S.C. 154 for utility and plant patents issuing on
 applications filed on or after June 8, 1995. Patents that issue from applications filed
 before June 8, 1995, are not eligible for patent term extension or patent term
 adjustment under 35 U.S.C. 154 .
 

 See MPEP
 § 2750 et seq. for patent term extensions available under 35 U.S.C. 156 for
 premarket regulatory review. The patent term extension that may be available under
 35 U.S.C.
 156 for premarket regulatory review is separate from and will be
 added to any extension that may be available under former and current 35 U.S.C. 154 .
 While patents that issue from applications filed before June 8, 1995, are not eligible
 for term adjustment under 35 U.S.C. 154 , such patents may be
 extended under 35 U.S.C. 156 .
 

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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 20:50:49