Interim Term Extension Can Only be Granted Before a Decision on a Term Extension

Somerset Pharmaceuticals, Inc. v. Dudas, [2007-1447](July 31, 2007)[MOORE, Michel, Prost] The Federal Circuit dismissed Somerset's request to compel the Patent Office to issue a decision as moot, but otherwise affirmed the district court.
BRIEF: Somerset filed a Patent Term Extension Application with the USPTO, as well as a request for an interim extension, to extend the term of RE34,579. Somerset the sued the Patent Office to compel the Patent Office to act on its interim request for an extension. The PTO subsequently denied both the term extension and the interim extension on the merits. Because the Patent Office acted on the interim request on the merits, Somerset withdrew the portion of the appeal that sought to compel the Patent Office to act on its request for interim relief, but continued its appeal of the refusal to grant interim relief. Because the statute only gives the Director authority to grant an interim extension until a decision on the extension is rendered, the Federal Circuit found that Somerset did not have a reasonable likelihood of success, and affirmed the denial of a preliminary injunction.