By Chaim Levitz

For those who have received an adverse response from an examiner at the USPTO for a COVID-19-related patent or design application and want to appeal the rejection with the USPTO, below is your guide to the new COVID Fast-Track Appeals Pilot Program.

On May 7, 2020, the United States Patent and Trademark Office (USPTO) implemented a fast-track examination process for US patent applications that pertain to COVID-19. The main goal of the fast-track examination process is to allow the applicant to receive a final granted patent within 12 months. Recently, the USPTO created a pilot program for applicants to fast-track an appeal of a rejection for those same applications.

This pilot program affords the ability for appellants to receive a decision on their appeal by the Patent Trial and Appeal Board (PTAB) within six months of acceptance into the pilot program.

In order to apply for this program, the application must satisfy the following requirements:

  • The application must be an original utility, design, or plant non-provisional application and claim a product or process subject to applicable FDA approval for COVID-19-related use. Some examples of applicable applications are an Investigational New Drug (IND) application, an Investigational Device Exemption (IDE), a New Drug Application (NDA), a Biologics License Application (BLA), a Premarket Approval (PMA), or an Emergency Use Authorization (EUA).
  • An ex parte appeal was filed and a PTAB notice was issued by the USPTO prior to requesting consideration under the pilot program. This means in order to qualify the appeal must already be pending before the PTAB.
  • The appellant must file a petition for fast-track status on their appeal under 37 C.F.R § 41.3 (link for the petition form can be found here). While filing the petition one must state that the application claims products or processes that are subject to an applicable FDA approval for COVID-19 use.

If the application satisfies the requirements stated above, the appellant can expect to receive a decision of their request within approximately two business days. Additionally, the USPTO is only allowing up to 500 participants in this pilot program, and a chart of how many petition slots are available and more information on the COVID Fast-Track Appeals Pilot Program can be found here.

To summarize, if you have filed an application for technologies relating to COVID-19 then your application can be eligible for this program. If your application has already received a final rejection, and you have already filed an appeal of the rejection, your application can be eligible for this program. Finally, once accepted into this program you can almost guarantee a decision on your appeal within six months.

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