37 CFR 1.779: Calculation of patent term extension for a veterinary biological product

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

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1.779    Calculation of patent term extension for a veterinary biological product.

  • (a) If a determination is made pursuant to § 1.750 that a patent for a veterinary biological product is eligible for extension, the term shall be extended by the time as calculated in days in the manner indicated by this section. The patent term extension will run from the original expiration date of the patent or any earlier date set by terminal disclaimer (§ 1.321 ).
  • (b) The term of the patent for a veterinary biological product will be extended by the length of the regulatory review period for the product as determined by the Secretary of Agriculture, reduced as appropriate pursuant to paragraphs (d)(1) through (d)(6) of this section.
  • (c) The length of the regulatory review period for a veterinary biological product will be determined by the Secretary of Agriculture. Under 35 U.S.C. 156(g)(5)(B), it is the sum of —
    • (1) The number of days in the period beginning on the date the authority to prepare an experimental biological product under the Virus-Serum-Toxin Act became effective and ending on the date an application for a license was submitted under the Virus-Serum-Toxin Act; and
    • (2) The number of days in the period beginning on the date an application for a license was initially submitted for approval under the Virus-Serum-Toxin Act and ending on the date such license was issued.
  • (d) The term of the patent as extended for a veterinary biological product will be determined by —
    • (1) Subtracting from the number of days determined by the Secretary of Agriculture to be in the regulatory review period:
      • (i) The number of days in the periods of paragraphs (c)(1) and (c)(2) of this section that were on and before the date on which the patent issued;
      • (ii) The number of days in the periods of paragraphs (c)(1) and (c)(2) of this section during which it is determined under 35 U.S.C. 156(d)(2)(B) by the Secretary of Agriculture that applicant did not act with due diligence;
      • (iii) One-half the number of days remaining in the period defined by paragraph (c)(1) of this section after that period is reduced in accordance with paragraphs (d)(1)(i) and (ii) of this section; half days will be ignored for purposes of subtraction;
    • (2) By adding the number of days determined in paragraph (d)(1) of this section to the original term of the patent as shortened by any terminal disclaimer;
    • (3) By adding 14 years to the date of the issuance of a license under the Virus-Serum-Toxin Act;
    • (4) By comparing the dates for the ends of the periods obtained pursuant to paragraphs (d)(2) and (d)(3) of this section with each other and selecting the earlier date;
    • (5) If the original patent was issued after November 16, 1988, by —
      • (i) Adding 5 years to the original expiration date of the patent or any earlier date set by terminal disclaimer; and
      • (ii) Comparing the dates obtained pursuant to paragraphs (d)(4) and (d)(5)(i) of this section with each other and selecting the earlier date;
    • (6) If the original patent was issued before November 16, 1988, and
      • (i) If no request for the authority to prepare an experimental biological product under the Virus-Serum-Toxin Act was submitted before November 16, 1988, by —
        • (A) Adding 5 years to the original expiration date of the patent or earlier date set by terminal disclaimer; and
        • (B) Comparing the dates obtained pursuant to paragraphs (d)(4) and (d)(6)(i)(A) of this section with each other and selecting the earlier date; or
      • (ii) If a request for the authority to prepare an experimental biological product under the Virus-Serum-Toxin Act was submitted before November 16, 1988, and the commercial marketing or use of the product was not approved before November 16, 1988, by —
        • (A) Adding 3 years to the original expiration date of the patent or earlier date set by terminal disclaimer; and
        • (B) Comparing the dates obtained pursuant to paragraphs (d)(4) and (d)(6)(ii)(A) of this section with each other and selecting the earlier date.
[Added, 54 FR 30375, July 20, 1989, effective Aug. 22, 1989]