Exelixis, Inc. v. Focarino

PER CURIAM. Exelixis, Inc., filed suits in the Eastern District of Virginia that challenged the determination by the Patent and Trademark Office of how much time to add, under 35 U.S.C. § 154(b), to the otherwise-applicable terms of two patents: U.S. Patent Nos. 8,067,436 and 7,989,622. Exelixis, Inc. v. Kappos, 919 F.Supp.2d 689 (E.D.Va.2013) (the '436 patent suit); Exelixis, Inc. v. Kappos, 906 F.Supp.2d 474 (E.D.Va.2012) (the '622 patent suit). Exelixis claimed that the PTO’s determinations of patent term adjustment rested on two mistaken interpretations of subparagraph 154(b)(1)(B) as it applies to requests for continuing examination under 35 U.S.C. § 132(b). After a final judgment in favor of Exelixis, those issues are now before us on appeal. We address those two interpretations in our decision today in Novartis AG v. Lee, No. 13-1160 (Fed.Cir. Jan. 15, 2014). Based on the ruling in Novartis, we vacate the judgments as to patent term adjustment for the '436 and '622 patents in this case and remand for redetermination of the proper adjustments in accordance with Novartis. No costs. VACATED AND REMANDED.