37 CFR 1.720: Conditions for extension of patent term

Taken from the Ninth Edition of the MPEP, Revision 07.2015, Last Revised in November 2015

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1.720    Conditions for extension of patent term.

The term of a patent may be extended if:

  • (a) The patent claims a product or a method of using or manufacturing a product as defined in § 1.710;
  • (b) The term of the patent has never been previously extended, except for extensions issued pursuant to §§ 1.701, 1.760, or 1.790;
  • (c) An application for extension is submitted in compliance with § 1.740;
  • (d) The product has been subject to a regulatory review period as defined in 35 U.S.C. 156(g) before its commercial marketing or use;
  • (e) The product has received permission for commercial marketing or use and —
    • (1) The permission for the commercial marketing or use of the product is the first received permission for commercial marketing or use under the provision of law under which the applicable regulatory review occurred, or
    • (2) In the case of a patent other than one directed to subject matter within § 1.710(b)(2) claiming a method of manufacturing the product that primarily uses recombinant DNA technology in the manufacture of the product, the permission for the commercial marketing or use is the first received permission for the commercial marketing or use of a product manufactured under the process claimed in the patent, or
    • (3) In the case of a patent claiming a new animal drug or a veterinary biological product that is not covered by the claims in any other patent that has been extended, and has received permission for the commercial marketing or use in non-food-producing animals and in food-producing animals, and was not extended on the basis of the regulatory review period for use in non-food-producing animals, the permission for the commercial marketing or use of the drug or product after the regulatory review period for use in food-producing animals is the first permitted commercial marketing or use of the drug or product for administration to a food-producing animal.
  • (f) The application is submitted within the sixty-day period beginning on the date the product first received permission for commercial marketing or use under the provisions of law under which the applicable regulatory review period occurred; or in the case of a patent claiming a method of manufacturing the product which primarily uses recombinant DNA technology in the manufacture of the product, the application for extension is submitted within the sixty-day period beginning on the date of the first permitted commercial marketing or use of a product manufactured under the process claimed in the patent; or in the case of a patent that claims a new animal drug or a veterinary biological product that is not covered by the claims in any other patent that has been extended, and said drug or product has received permission for the commercial marketing or use in non-food-producing animals, the application for extension is submitted within the sixty-day period beginning on the date of the first permitted commercial marketing or use of the drug or product for administration to a food-producing animal;
  • (g) The term of the patent, including any interim extension issued pursuant to § 1.790, has not expired before the submission of an application in compliance with § 1.741; and
  • (h) No other patent term has been extended for the same regulatory review period for the product.
[Added 52 FR 9395, Mar. 24, 1987, effective May 26, 1987; paras. (e) & (f) amended, 54 FR 30375, July 20, 1989, effective Aug. 22, 1989; paras. (b) and (g) revised, 65 FR 54604, Sept. 8, 2000, effective Nov. 7, 2000]