PTAB Alert: USPTO Creates Fast-Track Pilot Program for COVID-19 Appeals

The U.S. Patent and Trademark Office (USPTO) recently announced a Fast-Track Pilot Program for Appeals Related to COVID-19, which allows for expediting ex parte appeals for patent applications related to COVID-19.

The program began on April 15, 2021 and allows applicants to file a petition to the Patent Trial and Appeal Board (PTAB) to expedite resolution of such appeals. There is no fee associated with the filing of the petitions and the PTAB has set a target to resolve appeals within six months of the granting of a petition to expedite.

To qualify, the appeal must involve an original utility, design or plant non-provisional application that claims a “product or process subject to applicable FDA approval for COVID-19 use.” That is, the claims must be directed to a product or process that is subject to FDA approval for COVID-19 use. The appeal must be an ex-parte appeal in which the briefing is complete such that the appeal is pending before the PTAB. The petition to expedite must identify the application and appeal based on application number and appeal number, respectively, and must include a certification that the appeal is related to claims for products or processes that are subject to applicable FDA approval for COVID-19 use. The USPTO has provided a fillable petition form suitable for use (PTO/SB/454), which may be filed electronically. The USPTO has limited the number of petitions that will be granted under the pilot program to 500.

Together with the USPTO’s COVID-19 Prioritized Examination Pilot Program, which relates to the same types of applications, this program will allow applicants to receive expedited examination and final resolution on COVID-19 related patents.

More information is available at the USPTO website.

For more information about other fast track appeals programs, click here.

Douglas A. Miro is a partner, and Keith Barkaus is a counsel at Amster, Rothstein & Ebenstein LLP. Their practices specialize in intellectual property issues, including litigating copyright, trademark, patent and other intellectual property disputes. The authors can be reached at [email protected] and [email protected].

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