USPTO Announces Prioritization of Pandemic-Related Trademarks

On June 15, 2020, the U.S. Patent and Trademark Office (USPTO) announced the creation of a prioritized examination process for applications for trademarks and service marks “used to identify qualifying COVID-19 medical products and services.” The process allows applicants to petition for accelerated review after filing their trademark or service mark application. In addition, the USPTO announced that it will waive the fee for these petitions. Andrei Iancu, Director of the USPTO, stated that he believes this accelerated examination process “will help to bring important and possibly life-saving treatments to market more quickly.”

Typically, the USPTO examines applications in the order in which it receives them. However, an applicant may request that the process be accelerated under 37 CFR § 2.146(a)(3) when “very special circumstances exist.” Through its announcement of the specialized examination process for COVID-19 related marks, the USPTO is stating that it believes the current COVID-19 crisis to be such an extraordinary circumstance. Once a petition is granted, the initial examination process will be accelerated by about two months. The USPTO began accepting petitions for accelerated examination on June 16, 2020.

Applicants may only seek an advanced examination process for qualifying goods and services. These include “pharmaceutical products or medical devices such as diagnostic tests, ventilators, and personal protective equipment, including surgical masks, face shields, gowns, and gloves, that prevent, diagnose, treat, or cure COVID-19 and are subject to approval by the United States Food and Drug Administration,” as well as “medical services or medical research services for the prevention, diagnosis, treatment of, or cure for COVID-19.”

The accelerated examination process for trademarks and service marks is not the first step the USPTO has taken to attempt to help COVID-19 related medical products and services obtain intellectual property protection and thus come to market more quickly. On May 8, 2020, the USPTO announced a COVID-19 Prioritized Examination Pilot Program, which allows the USPTO to grant requests for prioritized patent examination for small or micro entity applicants without requiring these entities to pay the usual fees. The USPTO also announced that it would attempt to reach a final decision on the Pilot Program applications within six months as long as the applicants respond to communications in a timely manner.

The above measures provide an incentive for companies to prioritize COVID-19 related medical products and services, knowing they will potentially be able to obtain intellectual property protection for these goods and services more quickly and with less expense than they would in normal circumstances.