By Hailey Konnath

Law360 (April 14, 2021, 10:41 PM EDT) -- The U.S. Patent and Trademark Office unveiled a pilot program Wednesday that aims to prioritize and fast-track ex parte appeals of rejections on patent applications for inventions related to combating COVID-19.

Products and processes 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. Those products could be investigational new drugs, devices or biologics and may be subject to premarket approval or emergency use authorizations.

Under the program, the USPTO will take up to 500 petitions and aim to issue decisions within six months of granting a petition. There is no cost to lodge a petition, according to a statement from the agency. The program officially launches April 15.

"In order to keep appeals on schedule, oral hearings under the program will be expedited and, once scheduled, will not be rescheduled or relocated," the USPTO said.

In May 2020, the USPTO announced a COVID-19 Prioritized Examination Pilot Program in which the office would "grant requests for prioritized examination to patent applicants that qualify for small or micro entity status without payment of the typical fees associated with other prioritized examination."

In June 2020, the office announced prioritized examination for COVID-19 trademarks and service marks. The USPTO said the goal of accepting petitions to advance the initial examination of applications for marks used to identify certain medical products and services that help prevent, diagnose or treat or cure COVID-19.

Then-USPTO Director Andrei Iancu said in a statement at the time 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.

The office has also deferred provisional application fees for pandemic-related products and processes.

Last May, the USPTO also 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.

And the office extended 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.

Last month, Sens. Thom Tillis, R-N.C., and Tom Cotton, R-Ark., urged the USPTO to create a pilot program that would have patent examiners modify their review of patent applications to reduce the number of "unnecessary and inefficient" rejections based on eligibility.

In the March 22 letter, the lawmakers proposed a "sequenced approach to patent examination" where examiners would first look at whether an application was anticipated or obvious due to prior art, or whether it lacked enablement, which means that the specification fails to teach an ordinarily skilled person how to make the claimed invention without "undue experimentation."

The number of patent applications being filed at the USPTO has taken a hit due to the coronavirus pandemic, but the drop shouldn't have a detrimental effect on the agency's finances, USPTO officials said at a meeting in February.

--Additional reporting by Dorothy Atkins, Ryan Davis and Tiffany Hu. Editing by Jill Coffey.

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