USPTO Initiates COVID-19 Accelerated Appeals Program
By: Katie Rubino
Recently the United States Patent and Trademark Office (USPTO) implemented a fast-track pilot program for appeals related to COVID-19. This program complements the COVID-19 prioritized examination pilot program launched in July of last year, to prioritize the examination of innovations related to COVID-19. The COVID-19 prioritized examination pilot program will continue until 500 applications have been granted fast-track status under the program. Currently there are 110 spots remaining.
Typically, appeals to the Patent Trial and Appeal Board (PTAB) are taken up for decision in the order in which they are docketed, averaging approximately 13 months before a decision is granted. A small number of appeals can be reviewed out of turn, by being granted a “made special” status due to circumstances such as the age or health of an applicant.
The COVID-19 accelerated appeals program will accept petitions to advance and make special 500 appeals related to COVID-19. Once the 500 granted petition threshold is met, the USPTO may extend the appeals program based on examiner workload, resources needed to implement the program, and public feedback regarding the program.
To qualify for the program, an application must be a utility, design, or plant application that claims a product or process subject to an applicable FDA approval for COVID-19 use. This could include for example, technology subject to an emergency use authorization (EUA) or a new drug application (NDA). The appeal must be an ex parte appeal for which a notice of appeal has been filed and a PTAB docketing notice has been issued. In addition, Form PTO/SB/454 must be filed identifying the application which is the subject of an appeal.
The typical petition fee required for an appeal will be waived for all applications accepted into the COVID-19 accelerated appeals program.
PTAB Decision Timeline
The PTAB has set a projected timeline of approximately six months from the date that a petition is filed to the issuance of a decision. A decision regarding acceptance into the COVID-19 accelerated appeals program will be granted within two business days of an appeal being filed.
Impact on Practice
This program will aid in ensuring swift prosecution of COVID-19 related inventions to aid in bringing innovation to market that will expediate the pandemic response. To learn more about patents that have issued under the COVID-19 prioritized examination program, please click here.