The U.S. Patent and Trademark Office (USPTO) issued a notice on June 12 announcing a new, accelerated examination program for certain COVID-19-related trademark applications. The USPTO will begin accepting petitions for fast-track examination on June 16, 2020. This is great news for those developing and researching new products to help combat COVID-19.
Applications are typically examined in the order received, but under this new program, applicants can request an earlier initial examination by filing a Petition to the Director. The USPTO will waive the petition fees. The petition should be filed after the new application is filed, and if granted, the application will immediately be assigned for examination, which will expedite the examination process by about two months. Currently, examination typically takes around three months. Applicants can further expedite examination by immediately responding to any Office Action that is issued, despite having six months to respond. The 30-day publication for opposition period remains unchanged.
The petition must include the newly assigned serial number, a statement of facts, and a supporting affidavit or declaration that (1) sets forth the applicant’s COVID-19-related goods or services, (2) explains why the goods or services are qualifying, and (3) cites the relevant Code of Federal Regulations (CFR) section under which the goods or services are regulated.
To be eligible for prioritized examination, the trademark or service mark application must seek registration of a qualifying COVID-19-related medical good or service, which the USPTO defines as follows:
- Pharmaceutical products or medical devices such as diagnostic tests, ventilators, and personal protective equipment, including surgical masks, face shields, gowns, and gloves, that prevent, diagnose, treat, or cure COVID-19 and are subject to approval by the Food and Drug Administration (FDA).
- Medical services or medical research services for the prevention, diagnosis, treatment of, or cure for COVID-19.
The FDA approvals for the pharmaceutical products or medical devices may include an Investigational New Drug application, an Investigational Device Exemption, a New Drug Application, a Biologics License Application, a Premarket Approval, or an Emergency Use Authorization.
This new program is born of the USPTO’s view that the COVID-19 pandemic is an “extraordinary situation” under 37 C.F.R. § 2.148 and that when “very special circumstances exist,” the Director can exercise supervisory authority to advance the initial application examination under 37 C.F.R. § 2.146(a)(3). According to USPTO Director Andrei Iancu, accelerating the initial examination of COVID-19-related applications will help bring important and possibly life-saving treatments and/or preventions to the market more quickly.