The intersection of statutory law, common law, and administrative rulemaking prevents any certain predictions regarding the term of a patent that has been adjusted, extended, and/or terminally disclaimed in various combinations. This Comment poses a hypothetical situation in which the term of a terminally disclaimed patent is linked to another patent with term adjustment, and discusses the implications of such a linkage were the term of the former patent to be litigated. This Comment explores whether case law on terminal disclaimers, term extension, term adjustment, and judicial deference can help predict the outcome of such litigation, and ultimately concludes that it cannot. Rather, one of two things is needed for better predictability regarding a patent’s term: a shift in the judicial deference that the Court of Appeals for the Federal Circuit pays to decisions of the Patent and Trademark Office, or a more comprehensive statutory scheme that is capable of handling such hypothetical situations.
Emily M. Hinkens,
Patent Term Adjustment and Terminal Disclaimers: Are the Terms of Patents Being Decided Ad Hoc?,
94 Marq. L. Rev. 375
Available at: http://scholarship.law.marquette.edu/mulr/vol94/iss1/6