The recently enacted Coronavirus Aid, Relief, and Economic Security (“CARES”) Act contains a little-known provision to protect inventors during the ongoing COVID-19 pandemic. Section 12004 of the CARES Act grants the U.S. Patent and Trademark Office (“USPTO”) director the temporary authority to “toll, waive, adjust, or modify, any timing deadline” established by federal patent or trademark laws and regulations during the “emergency period”—from the date of enactment of the CARES Act through May 18, 2020, 60 days after the end of the COVID-19 national emergency that President Trump declared on March 13, 2020.
The USPTO may exercise its CARES Act authority only after determining that the COVID-19 crisis: (1) materially affects the functioning of the USPTO; (2) prejudices the rights of applicants, registrants, patent owners, or others appearing before the USPTO; or (3) prevents applicants, registrants, patent owners, or others appearing before the USPTO.
On March 31, 2020, the USPTO announced that it was using its CARES Act powers to extend “the time allowed to file certain patent and trademark-related documents and to pay certain required fees.” In doing so, USPTO Director Andrei Iancu noted that “[i]nventors and entrepreneurs are the lifeblood of our economy, and we recognize that many of them are having difficulty as a result of the effects of COVID-19.”
The USPTO’s CARES Act Notice specifies that the due date for any of 12 specific types of patent application and reexamination proceeding documents and fees due between March 27, 2020 and April 30, 2020 will be extended for 30 days. Filers must provide a statement with their late filing that the delay was due to the COVID-19 outbreak. The Notice provides detailed guidance regarding the specific circumstances in which a filing delay will be deemed to be “due to the COVID-19 outbreak.”
The Notice also provides similar 30-day deadline extensions for three types of Patent Trial and Appeal Board (“PTAB”) filings, along with related instructions regarding PTAB proceedings. Finally, it is important to note that several of the extensions discussed above are only available to “small and micro entities,” as detailed in the Notice.
To help patent owners, applicants, and others understand and interpret this Notice, the PTO has created separate Frequently Asked Questions page for patents related to the COVID-19 deadline extensions.
Apart from these actions taken pursuant to the CARES Act, the PTO also previously announced that it will waive the fee “for petitions to revive applications that became abandoned because applicants could not meet the deadline for responding to an Office communication due to the COVID-19 outbreak” and will waive the requirement for an original handwritten signature for certain correspondence.