Today, the U.S. Patent and Trademark Office announced a pilot program to accelerate prosecution of patent applications relating to COVID-19 prevention and treatment submitted by small and micro entities. The contours of the COVID-19 Prioritized Examination Pilot Program are set out in a Federal Register Notice currently posted on PTO's website.
Under the new COVID-19 program, PTO will waive the prioritized examination fee (37 C.F.R. § 1.17(c)) and the processing fee (37 C.F.R. § 1.17(i)(1)) required for prioritized examination, a process that has been available since the America Invents Act. In a standard prioritized examination, PTO has the goal of providing a final disposition on the application within a year after the application is granted priority status. With the new COVID-19 program, PTO states it "believes it can achieve" final disposition in six months if the applicant is prompt in responding to PTO actions and communications.
To qualify for the new COVID-19 program, the applicant must be a small or micro entity submitting an application that claim products or processes to prevent or treat COVID-19 where the product or process will also need U.S. Food and Drug Administration approval for use in COVID-19. Examples of qualifying inventions include, but are not limited to, products or processes that require approval of an Investigational New Drug application, Investigational Device Exemption, New Drug Application, Biologics License Application, Premarket Approval, or an Emergency Use Authorization.
The COVID-19 pilot program will accept a total of 500 requests from small and micro entities, but PTO may extend, limit, or terminate the program depending on resource needs, feedback, and effectiveness. The program is restricted to utility and plant non-provisional applications and limited to primarily "original" applications (as opposed to continuation applications). To streamline the application process, PTO has produced a form for requesting prioritized examination under the program, PTO/SB/450, titled "Certification and Request for COVID-19 Prioritized Examination Pilot Program under 37 C.F.R. § 1.102(e)."1
If you are interested in the COVID-19 Prioritized Examination Pilot Program, Seyfarth Shaw attorneys are ready to assist and work with you. Please feel free to contact any of the authors for more information. We also encourage you to visit Seyfarth Shaw's Resource Center relating to COVID-19 legal developments, which includes numerous updates and guides for small businesses and entrepreneurs.
1 The form is not yet available on the USPTO website, but will be located with other forms at https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012 according to the Federal Register Notice. See Federal Register Notice at 6.
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