Take a deep breath.  The Federal Circuit held today that a patent holder may disclaim any right to patent protection beyond a certain date without losing the right to seek an extension of the date on the ground that regulatory delays prevented marketing of the invention.  In the case before it, Merck & Co. filed a "terminal disclaimer" in which it agreed to give up patent protection for a glaucoma drug after June 30, 2004.  Merck later requested an extension of the period because the Food and Drug Administration took several years to approve the drug for sale.  The Patent and Trademark Office granted the extension.  The Federal Circuit concluded that the terminal disclaimer didn’t prevent Merck from requesting and receiving the later expiration date.  Merck & Co., Inc. v. Hi-Tech Pharmacal Co., Inc. , No. 06-1401 (Fed. Cir. Mar. 29, 2007).

Got it?  You may now resume normal breathing.

Barry Barnett

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