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MicuRx Sues USPTO For Patent Term Adjustment Under Exelixis

Posted in Patent Term Adjustment

MicuRx Pharmaceuticals, Inc. appears to be one of the first patent holders to sue the USPTO for additional Patent Term Adjustment (PTA) based on the recent district court decision in Exelixis, Inc. v. Kappos, No. 1:12cv96 (E. D. Va. Nov. 1, 2012). The patent at issue (U.S. Patent 8,178,683, directed to oxazolidinone antibiotic agents) was filed August 6, 2008, and granted May 15, 2012. The USPTO awarded some PTA for its failure to grant the patent within three years of the filing date, but did not award any PTA for the days after March 5, 2012—the date on which a Request for Continued Examination (RCE) was filed. Thus, MicuRx seeks an additional 71 days of PTA—the number of days from March 5 to May 15. The complaint was filed within the 180 day window for bringing a civil action under 35 USC § 154(b)(4)(A).