Although COVID-19 increasingly affects regulatory bodies, the United States Patent and Trademark Office (USPTO) has largely continued business-as-usual (see its Coronavirus website). This post discusses the USPTO’s operational status, its effect on innovative companies, and meaningful modifications the USPTO has made thus far.
Current Status of the USPTO
Fortunately, the USPTO has vast experience with and resources for working remotely. Many patent examiners frequently work from home already. Furthermore, filing patent applications and prosecution documents is largely, if not entirely, done electronically. Therefore, the patent filing process, and substantive prosecution of applications, remains largely intact as of now.
Impact on Innovation
Because the U.S. is now a “first inventor to file” system, it is important to recognize that because the USPTO filing system is still effectively business-as-usual, innovative companies should continue to file patent applications promptly. Even if filing a provisional patent application, it’s as critical now as ever to claim a stake to your intellectual property with as early a filing/priority date as possible.
Some Modifications to USPTO Proceedings
Of course, the USPTO has issued some changes; the most important ones are summarized below:
- Remote Meetings. Meetings that typically have been held in-person will be conducted remotely by video or telephone. This applies to meetings such as “examiner and examining attorney interviews, Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB) oral hearings,” among others.
- USPTO Offices Closed to Public. Until further notice, members of the general public will not be allowed into USPTO facilities.
- Financial Relief. Since the USPTO deemed the effects of coronavirus an “extraordinary situation,” it is thus waiving petition fees in certain instances (e.g., petitioning if particular deadlines simply cannot be met due to coronavirus).
- Waiver of Original Handwritten Signature Requirement. The USPTO is “waiving its only regulatory requirements for an original handwritten signature personally signed in permanent dark ink or its equivalent for certain correspondence with the Office of Enrollment and Discipline and certain payments by credit card.”
Patent Protection Best Practices During the COVID-19 Pandemic
With the USPTO operating relatively undisturbed, it is important to keep the following steps in mind to ensure your business is properly protecting its intellectual property:
1. Timing is Key.
The USPTO has made clear that even with their offices being closed to the public, “[p]atent and trademark application deadlines and other deadlines are not extended.” While intellectual property filings may be the last thing on your mind during these stressful times, it is essential to adhere to all deadlines.
Timing is also essential for initial filing of any patent applications. The United States remains a “first inventor to file” jurisdiction, wherein the first party to file for an application regarding particular technology, if invented independently of a second filer, is the one who receives priority.
2. Remain Vigilant to Protect Existing IP.
Just as these uncertain times are ripe for cybercrime activity (see Test Your Reflexes and Prepare for an Increase in Cyber Incidents), they also form an environment in which infringers may be more active; with the attention of many businesses focused solely on surviving the crisis, infringers may exploit openings to knock off intellectual property. It is important to monitor the marketplace for potentially-infringing behavior.
In conclusion, although COVID-19 has already dramatically impacted business, its impact on the USPTO has been much less significant. By staying abreast of announcements from the USPTO and continuing to focus on deadlines, pursuing patent applications, and monitoring potential infringement activity, businesses can be best prepared for the post-coronavirus economy.
Woods Rogers has a Pandemic Response Group of attorneys who are monitoring the COVID-19 situation as it unfolds. This group will report quickly on obligations, potential liabilities, and legislative actions in a range of different practice areas—from commercial litigation to contract law, real estate and construction law, cybersecurity, tax and employment benefits, and labor and employment matters. We stand ready to assist our clients in these difficult times.