U.S. Patent and Trademark Office Expedited Patent and Trademark Review

The U.S. Patent and Trademark Office (USPTO) recently announced the COVID-19 Trademark Prioritized Examination Program as well as a Prioritized Examination Pilot Program for Patent Applications.

For trademarks, the program allows COVID-19-related trademark applications to be advanced out of turn and immediately assigned for examination. Examination can be expedited by approximately 2 months and the USPTO has waived the fee usually required for expedited review requests. The products involved must be COVID-related medical products and services such as pharmaceutical products or medical devices such as tests or personnel protective equipment.

For patents, the expedited review pertains to applications that “claim products or processes that are subject to an applicable FDA approval for COVID-19 use.” USPTO had capped the number of eligible patents to 500 but may expand the program. In an unprecedented declaration, the USPTO has pledged to make a patenting decision within a year and further will waive the fees associated with requesting expedited review. The patent applicant must fall under “small entity” status meaning nonprofits and small businesses. Additionally, the application must claim priority to no more than one earlier US non-provisional or PCT application. Applications that are currently under a request for continued examination (RCE) are also eligible to apply for prioritized examination under this program; however, such a request must be filed before the mailing of the first USPTO Office Action after the filing of the RCE. Where the average pendency to get a patent approved by the USPTO is 24 months (and even longer for pharmaceutical patents), this can represent a financial windfall for a company, both adding patent life and cutting patent prosecution costs in half.
In July 2020, the USPTO additionally rolled out a Fast Track Appeals Pilot Program. The target for Appeal decisions under the program is 6 months versus the current 15 month average for appeal pendency. This program will expire in approximately 12 months of after 500 appeals. For the first time in USPTO history, applicants will be able to speed up both patent examination and ex parte appeals, thus obtaining decisions on their most important inventions in about half the time of a typical application.

How Frier Levitt Can Help

Frier Levitt, LLC offers a full range of Intellectual Property Services. Our experienced IP team of attorneys admitted to practice before the USPTO can custom craft an Intellectual Property strategy for your company ranging from due diligence and licensing to patent and trademark preparation and litigation. To take advantage of these USPTO initiatives, please contact us.

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