Adjustments, Extensions, Disclaimers, and Continuations: When Do Patent Term Adjustments Make Sense?
67 Pages Posted: 30 Jul 2015 Last revised: 16 Jun 2020
Date Written: July 1, 2013
The United States patent system represents a measured trade-off between two competing policy considerations: providing sufficient incentives to encourage the innovation and development of new and socially useful inventions; and ensuring that such inventions are readily available to the public at an affordable price. Although the default patent term is now twenty years from filing, various features of, and changes to, the patent system over the years have allowed patent owners to extend the duration of their patent monopolies, sometimes for several years. Such extensions, though seemingly insignificant when compared to the full patent term, have an enormous impact on patent holders, their competitors, and the public. In some cases, an extension merely corrects a deficiency in the patent balancing system and ensures equilibrium between incentives and access. In other cases, however, an extension may result in a socially harmful enlargement of the patent holder’s monopoly, allowing the patentee to collect a windfall beyond what was necessary to incentivize the invention’s development, while stifling competition and depriving the public of affordable access to the invention. In all cases, these extensions delay competition and access while introducing uncertainty about the expiration of the patent. It is thus beneficial to distinguish situations where extensions are justified to provide adequate research and development incentives from situations where extensions are not justified. This Article clarifies the current law governing the various forms of patent extensions and their interactions, and evaluates this law from a policy perspective.
Keywords: patent, intellectual property, patent extensions, economic efficiency, patent policy, pharmaceutical patents
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