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Law360 (June 15, 2020, 9:00 PM EDT) -- The U.S. Patent Trademark Office announced Monday a new examination program that aims to prioritize certain trademark and service mark applications related to the novel coronavirus in efforts to expedite the review process by an estimated two months.
Under the new program, the USPTO will accept petitions to advance the initial examination of applications for marks used to identify certain medical products and services that help prevent, diagnose, treat or cure COVID-19, and it has agreed to waive application fees.
USPTO Director Andrei Iancu said in a statement Monday that accelerating the initial examination of COVID-19-related trademark and service mark applications will help bring "important and possibly life-saving treatments" to market more quickly.
The USPTO typically evaluates trademark and service mark applications in the order the office receives them, but federal regulations allow applicants to request that they skip the line in certain circumstances.
The USPTO said the impact of the coronavirus pandemic qualifies as an "extraordinary situation" under federal regulations that gives the director the authority to suspend rules governing the timeline of an application's review.
Products that qualify under the new program must be subject to approval by the U.S. Food and Drug Administration for use in preventing or treating COVID-19. Alternatively, the applicant's service must qualify as medical research for the prevention or treatment of COVID-19, according to the USPTO.
Products that can qualify for the program include ventilators, diagnostic tests and personal protective equipment like face masks, gowns and gloves. They may also include investigational new drug applications, investigational device exemptions, new drug applications, biologics license applications, premarket approvals or emergency use authorizations.
The USPTO noted that while the process will be expedited for qualified applicants who promptly respond to any action from the office, any trademark applications that are approved must wait 30 days after they are published in the Trademark Official Gazette to give the public a chance to oppose them.
The USPTO said it will notify the public if it ends or modifies the program in the future.
The announcement is the latest in a series of actions taken by the USPTO in response to the outbreak. In May, the USPTO launched a "Patents 4 Partnership" platform to support patent owners who seek to license intellectual property related to the "prevention, treatment and diagnosis" of COVID-19.
The new platform's goal is to create a "user-friendly, searchable repository of patents and published patent applications" related to COVID-19, which the agency said will help connect patent owners with businesses that are interested in obtaining licenses to the technology.
But legal professionals warn that the scope of the program is narrow and a speedy examination may mean closer scrutiny.
Last month, the office also extended for the third time certain patent and trademark filing deadlines to accommodate those affected by the COVID-19 pandemic and gave tips on how trademark applicants and registrants could deal with logistical complications created by the virus outbreak.
Many deadlines for patent and trademark filings are governed by statute and typically cannot be extended by the USPTO. However, the $2 trillion Coronavirus Aid, Relief and Economic Security, or CARES, Act granted the office temporary authority to extend the deadlines during the crisis.
When the pandemic began, the USPTO also waived other requirements that didn't require congressional approval, including certain fees to file petitions seeking to revive patent and trademark applications abandoned based on missed deadlines.
Iancu wrote a letter to the House Judiciary Committee last week that trademark and patent revenues from application filings for fiscal year 2020 are lower than anticipated likely due to the pandemic. He said while the patent operating reserve will probably be stable enough to cover the loss of revenue for this year, the "troubling" drop in filings could lead to more losses in 2021 and 2022.
As of early May, the office had a total reserve fund of $361 million, according to USPTO Chief Financial Officer Jay Hoffman, who spoke to the agency's Patent Public Advisory Committee at a meeting that month.
In response to the outbreak, the USPTO has also called off face-to-face meetings between applicants and patent and trademark examiners, along with hearings before the Patent Trial and Appeal Board and the Trademark Trial and Appeal Board. The USPTO closed its offices to the public in April.
--Additional reporting by Mike LaSusa, Tiffany Hu and Ryan Davis. Editing by Bruce Goldman.
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