Do divisional, continuation, and continuation-in-part affect expiration dates for patents filed prior to June 8, 1995?

Question

As noted in an answer regarding the expiration of US 5,618,582, the effective expiration date of the patent was calculated as:

The patent application was filed on June 7, 1995 and issued on April 8, 1997.

US patents issuing from patent applications filed on or after June 8, 1995 have a term of 20 years from the earliest non-provisional patent application priority date. US patents issuing from patent applications filed prior to June 8, 1995 have a term equal to the greater of 17 years from issuance or 20 years from the earliest non-provisional patent application priority date.

In this case, since 17 years after issuance is greater, the patent expires on April 9, 2017.

The above reasoning is clear. However, the patent is a divisional of a continuation of a continuation-in-part of an abandoned application filed July 25, 1990:

Division of Ser. No. 254,136, Jun. 6, 1994, which is a continuation of Ser. No. 7,664, Jan. 22, 1993, abandoned, which is a continuation of PCT WO 92/02,307 filed Jul. 23, 1991, which is a continuation-in-part of Ser. No. 557,104, Jul. 25, 1990, abandoned.

Normally, this would affect the expiration date of the patent by using the earliest filing date. In this case, that would appear to be July 25, 1990, giving an expiration date of April 8, 2014.

The Legal Status are as follows:

Feb 20, 1996    AS      Assignment  
                        Owner name: TRIMEX COMPANY, NORTH CAROLINA
                        Effective date: 19930521

Jun 27, 2000    FPAY    Fee payment 
                        Year of fee payment: 4

Sep 13, 2004    FPAY    Fee payment 
                        Year of fee payment: 8

Sep 25, 2008    FPAY    Fee payment 
                        Year of fee payment: 12

Do the expiration date rules for divisional patents and continuations not apply to patents filed prior to June 8, 1995?

Do abandoned or continuation-in-part normally have any additional effect on the calculation of an expiration date?

Answer 1

Everything you are looking for is in Section 2701. Any prior application the grant is based on, whether it was a continuation, divisional, or continuation-in-part is taken into account for the priority date. No term adjustments or extensions are allowed on grants from applications filed prior to June 8, 1995. The only other bit of information you should look for is a reference to any terminal disclaimers, which can get more complex, since the date printed on the patent might not be correct. Fortunately, most of these patents are now expired.

2701 Patent Term [R-11.2013]

I. CONTINUING APPLICATIONS

A patent granted on a continuation, divisional, or continuation-in-part application that was filed on or after June 8, 1995, will have a term which ends twenty years from the filing date of earliest application for which a benefit is claimed under 35 U.S.C. 120, 121, or 365(c), regardless of whether the application for which a benefit is claimed under 35 U.S.C. 120, 121, or 365(c) was filed prior to June 8, 1995.

VI. PATENT TERM EXTENSIONS OR ADJUSTMENTS

See MPEP § 2710 et seq. for patent term extensions or adjustments for delays within the USPTO under 35 U.S.C. 154 for utility and plant patents issuing on applications filed on or after June 8, 1995. Patents that issue from applications filed before June 8, 1995, are not eligible for patent term extension or patent term adjustment under 35 U.S.C. 154.

V. EXPIRATION DATE OF PATENTS WITH TERMINAL DISCLAIMERS

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Before June 8, 1995, the terminal disclaimer date was printed on the face of the patent; the date was determined from the expected expiration date of the earlier issued patent based on a seventeen year term measured from grant. When 35 U.S.C. 154 was amended such that all patents (other than design patents) that were in force on June 8, 1995, or that issued on an application that was filed before June 8, 1995, have a term that is the greater of the “twenty year term” or seventeen years from the patent grant, the terminal disclaimer date as printed on many patents became incorrect.

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