[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5120 Introduced in House (IH)]







109th CONGRESS
  2d Session
                                H. R. 5120

   To amend title 35, United States Code, to conform certain filing 
           provisions within the Patent and Trademark Office.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 6, 2006

  Mr. Jenkins (for himself, Mr. Delahunt, Mr. Duncan, and Mr. Meehan) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend title 35, United States Code, to conform certain filing 
           provisions within the Patent and Trademark Office.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. FINDINGS.

    The Congress finds the following:
            (1) The Congress historically has provided vigorous support 
        for innovation in the useful arts by establishing a system of 
        patent protection for products and processes.
            (2) Through section 156 of title 35, United States Code, 
        the Congress sought to promote the development of innovative 
        drugs by granting patent term restoration to companies to 
        recover a portion of the patent term for such drugs that was 
        consumed during the approval process conducted by the Food and 
        Drug Administration.
            (3) Consistent with the historic purpose of promoting 
        innovation, patent legislation, and subsequent rules 
        promulgated by the United States Patent and Trademark Office 
        (PTO), have routinely given the PTO wide discretion to excuse 
        late filings and other mistakes that might otherwise result in 
        the forfeiture of underlying patent rights.
            (4) Contrary to this routine practice, however, under 
        section 156 of title 35, United States Code, the PTO has no 
        discretion to excuse a filing that is even one day late.
            (5) In order to be consistent with the intent of protecting 
        patent rights and promoting further innovation, the PTO should 
        be granted limited, circumscribed discretion to consider patent 
        term restoration applications filed in an untimely manner.

SEC. 2. FILING OF APPLICATIONS FOR EXTENSIONS OF A PATENT TERM.

    (a) In General.--Section 156 of title 35, United States Code, is 
amended by adding at the end the following new subsection:
    ``(i) Unintentional Delay.--The Director may accept an application 
under this section that is filed not later than 5 days after the 
expiration of the 60-day period provided in subsection (d)(1) if the 
applicant files a petition showing, to the satisfaction of the 
Director, that the delay in filing the application was unintentional. 
Such petition must be filed with the application in the case of an 
application filed on or after the date of the enactment of this 
subsection and must be filed not later than 5 days after such date of 
enactment in the case of an application which, on such date of 
enactment, is pending, is the subject of a request for reconsideration 
of a denial of a patent term extension under this section, or has been 
denied a patent term extension under this section in a case in which 
the period for seeking reconsideration of such denial has not yet 
expired. The Director shall make a determination on a petition under 
this subsection not later than 30 days after the date on which the 
petition is received. If no determination has been made on the petition 
within that 30-day period, the petition shall be deemed to be 
denied.''.
    (b) Revival Fees.--Section 41(a)(7) of title 35, United States 
Code, is amended--
            (1) by striking ``or for an'' and inserting ``for an''; and
            (2) by inserting after ``reexamination proceeding,'' the 
        following: ``or for an unintentionally delayed application for 
        patent term extension,''.
    (c) Effective Date.--The amendments made by this section shall take 
effect on the date of the enactment of this Act, and shall apply to any 
application for patent term extension under section 156 of title 35, 
United States Code, which--
            (1) is filed on or after the date of the enactment of this 
        Act; or
            (2) on such date of enactment--
                    (A) is pending;
                    (B) is the subject of a request for reconsideration 
                of a denial of a patent term extension under section 
                156; or
                    (C) has been denied a patent term extension under 
                such section 156 in a case in which the period for 
                seeking reconsideration of such denial has not yet 
                expired.
                                 <all>