Patent term extension: to err is human

Hot off the press is this commentary by Israeli patent practitioner Michael Factor (Factor Patent Attorneys) on this week's Israeli decision in Patent Term Extension for 154325 submitted by Reinhold Cohen Patent Attorneys and Gilat Bareket Lawyers on behalf of Centocor Ortho Biotech Inc., before Jaqueline Bracha, Deputy Commissioner, 22 March 2012. Its contents will make uncomfortable reading for many a patent practitioner in private practice.

 As Michael -- not a man to pull his punches -- comments:

"From the affidavits submitted by employees of the agents for applicant ... it is clear that despite the firm being organized and having procedures in place to cover patent term extensions, there was human error. The deadline was missed and this was discovered seven months later.

Whether this is or is not fairly described as ‘unintentional’ or as the agent for applicant exhibiting ‘due care’, such circumstances cannot fairly be described as ‘circumstances over which the applicant and his representative had no control and which could not be prevented‘ unless one rules that human error is unavoidable. There was no earthquake or natural disaster to blame, there was no war, nor was there a postal strike. A paralegal and her supervisor both messed up. It happens ...".

Following the decision of the Deputy Commissioner in favour of the patent proprietor, Michael suspects that generic companies Teva or Unipharm might be considering an appeal.