Patent Law

Last week, I wrote about whether an infringement lawsuit can properly be filed at 12:01 am on the date that the patent is scheduled to issue. A plaintiff only has standing to sue once a patent is issued, and it is not clear to me that patent has actually issued by that point (even if the patentee holds exclusive rights for the entire day once the patent has issued).*

Expiration Date: At the other end of the spectrum is the patent expiration date. The language for the new twenty year term reads as follows:

35 U.S.C. 154(a)(2) TERM.-Subject to the payment of fees under this title, such grant shall be for a term beginning on the date on which the patent issues and ending 20 years from the date on which the application for the patent was filed in the United States …

The optional seventeen year term language is parallel to the twenty year term, although slightly different: “The term … shall be the greater of the 20-year term as provided in subsection (a), or 17 years from grant.” 35 U.S.C. 154(c)(1).

The Question: Is the standard patent term (a) twenty years, or is it (b) twenty years and one day?  I.e., if a patent is set to expire on April 2, 2008, can a generic manufacturer begin to make and sell the product on the morning of the 2nd without infringing? I would argue that the term should be (a) twenty years — perhaps primarily because 154(c)(1) refers to the “20–year term.” However, I have heard of generic manufacturers who wait the extra day to be safe. (In certain drug cases, this extra day is worth several hundred thousand dollars). What is the answer?

Notes:

• 37 C.F.R. 1.7 may also be relevant. 
• * One bit of hard evidence answering last week’s question comes from dicta in a 1952 Helene Curtis patent case. In that case, the SDNY district court noted that the lawsuit had been filed “fifty-nine minutes after the patent had issued at noon of December 4, 1951” — and thus, was proper. See 105 F. Supp. 886. [Link]