CORRECTED RESTRICTION REQUIREMENT DELAY INELIGIBLE FOR PATENT TERM ADJUSTMENT

Federal Circuit affirmed the district court's grant of summary judgment denying patent term adjustment of 197 days of PTO delay in sending a corrected Restriction Requirement.  Pfizer, Inc. v. Lee, No. 2015-1265 (Fed. Cir. Jan. 22, 2016).  In affirming the decision, Judge O'Malley writing for the majority held that "because the initial restriction requirement placed the applicants on notice of 'the broad statutory basis for [the rejection of the] claims', the restriction requirement satisfied the notice requirement of Section 132."  Therefore, the "alleged delay is not the type of error for which the Act was intended to compensate."  In her dissent, Judge Newman stated that the majority panel failed to count the delay due to examiner's error and its correction and that such prosecution delay is within the statutory conditions for patent term adjustment.  Full text of the opinion is available here.