USPTO Launches COVID-19 Fast-Track Appeals Pilot as Companion to Prioritized Examination Pilot

The United States Patent and Trademark Office (USPTO) announced yesterday that it will launch a COVID-19 fast-track appeals pilot program beginning today. The pilot is a companion to the COVID-19 Prioritized Examination Pilot Program launched last year.

COVID-19 Fast-Track Ex Parte Appeals

The latest pilot will allow an appellant to have certain COVID-19-related ex parte appeals before the Patent Trial and Appeal Board (PTAB) accorded fast-track status. The appeal must be related to an application that claims a product or process that is subject to an applicable Food and Drug Administration (FDA) approval for COVID–19 use. These may include, “but are not limited to, an Investigational New Drug (IND) application, an Investigational Device Exemption (IDE), a New Drug Application (NDA), a Biologics License Application (BLA), a Premarket Approval (PMA), or an Emergency Use Authorization (EUA).”

According to the unpublished Federal Register Notice, the program aims to reach a decision on an ex parte appeal within six months from the date the appeal is entered into the pilot program.

Petitions will be accepted until 500 appeals have been given fast-track status, though it may be extended.

To be accepted, the appeal must involve a patent application that is an original utility, design, or plant nonprovisional application. The pilot is not available for “applications or proceedings that are already treated as special during appeal, such as reissue applications, reexamination proceedings, appeals made special due to the age or health of an applicant, or appeals subject to any other pilot program that advances an appeal out of turn, including the Fast-Track Appeals Pilot Program.”

The fee normally required under 37 CFR 41.20(a) will be waived for eligible appeals, pursuant to 37 CFR 1.183.

The limit set of 500 granted petitions corresponds to approximately 8% of the total number of new appeals received in the average fiscal year, says the Federal Register Notice.

Prioritized Examination Pilot

In May of last year, the USPTO implemented the COVID-19 Prioritized Patent Examination Pilot Program, under which it granted prioritized examination, similar to the existing Track One Prioritized Examination program, to applications claiming a product or process related to COVID-19, which “must be subject to an applicable FDA approval for COVID-19 use”. Under that program, requests are granted to qualifying small or micro entity applicants without payment of the typical prioritized examination fees. A COVID-19 Prioritized Trademark Examination Program was launched in June 2020.

As of December 2020, 400 applications had received prioritized examination under the program. On the patent side, 251 requests for prioritized patent application examination had been granted, resulting in 33 patents being allowed or granted, and 129 trademark petitions had been granted.

More than half of the patent applications were directed to medical treatments, vaccines, and diagnostic technology, with the rest being directed to ventilators, personal protective equipment (PPE) and other technology related to COVID-19. Almost half of the trademark petitions granted were for items designed to detect and treat COVID-19, while the rest were for PPE and medical goods, as well as medical services related to COVID-19.

Reach Out

For more information about the fast-track appeals pilot program, contact the USPTO here: Phone: 571-272-9797; Email: [email protected].