COVID-19 has turned nearly every aspect of American life and business upside down. Concern for many business legal issues has dropped from the immediate consciousness of most, and IP law makes up only a tiny segment of the law. However, it is worth noting that the USPTO has received legal authority to make some procedural changes that may affect patent and trademark applicants.
Many, if not most, IP deadlines are set by statute, and prior to this week, the USPTO indicated that it did not have the power, even given an emergency, to circumvent these laws. However, as part of the COVID-19 relief bill passed and signed into law this week, a few provisions have specifically been included to help patent applicants.
The Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) includes a section that gives temporary authority to the USPTO director in “tolling, waiving, adjusting or modifying a timing deadline” under the relevant patent and trademark statutes.
Under the Cares Act, the USPTO may extend the statutory filing deadlines in the event that the pandemic “materially affects the functioning of the Patent and Trademark Office,” “prejudices the rights of applicants, registrants, patent owners or others appearing before the office” or “prevents users from filing a document or paying a fee timely,” the bill says. It’s pretty obvious that this is a threshold that we have already passed.
The new measures take effect immediately and will last for 60 days after the end of the renewable emergency period that began March 13, so therefore there is a good chance these provisions will be extended past mid-May. The authority will expire two years following the enactment of the bill.
At the same time, the USPTO has, on its own authority, waived certain filing fees (mostly petition fees) as well as the requirement for original signatures on certain documents.
THE BUSINESS TAKE-AWAY: It may not be much, but the takeaway is to double check the current status of any fees or statutory time limits. Longstanding practices in this regard may no longer be current.