The United States Patent and Trademark Office (USPTO) has recently discovered a coding error in its patent term adjustment (PTA) software. This error affected patents issued between March 19, 2024, and July 30, 2024, potentially causing incorrect calculations in the delay under 35 U.S.C. 154(b)(1)(A) (“A” delay) and the overlap under 35 U.S.C. 154(b)(2)(A) (“Overlap”). Other PTA calculations were not impacted.
The error was a result of a software update, and the USPTO has since corrected the issue. While the overall PTA for many affected patents remains accurate, some may contain miscalculations where the “A” delay and the “Overlap” did not balance, leading to potential discrepancies in the overall patent term.
The USPTO estimates that approximately 1% of patents issued during this period may be affected. Impacted patentees can request a revised PTA determination under 37 CFR 1.705(b), and the USPTO has waived the associated fees for requests based solely on this error. These requests must be submitted within two months of the patent grant date, with a possible extension of up to seven months if required.
This issue does not affect other types of PTA calculations, and the USPTO will manually review each request. Patentees are encouraged to contact USPTO officials for further inquiries regarding the error and the process for requesting reconsideration.
