Small business efforts to patent technology which deals with the COVID-19 outbreak will be getting a boost thanks to the United States Patent and Trademark Office (USPTO). Effective May 14, 2020, the USPTO has opened an express lane for certain patent applications which are directed to COVID-19 related technology, and are filed by applicants who meet the USPTO’s requirements for small or micro entity status at the USPTO (for example, having fewer than 500 employees, among other things). Patent applications accepted into the program will receive fast-tracked examination without the usual fees for the program which can otherwise total several thousand dollars.

Under the COVID Fast Track Program, up to 500 COVID-19 related patent applications, filed by small or micro entities and accompanied by the proper USPTO Form sb0450, will be accepted into the program and examined on a prioritized basis. The goal of the USPTO for patent applications accepted into the COVID Fast Track Program is to reach final disposition (e.g., allowance, final rejection, etc.) within 12 months of the application filing date. If the applicant replies to all USPTO communications within 30 days, the USPTO will endeavor to reach final disposition within 6 months.

In addition to the applicant(s) qualifying for small or micro entity status, to participate in the COVID Fast Track Program the patent application must, among other things:

  1. contain one or more claims directed to a product or process related to COVID-19;
  2. the COVID-19 related product or process must also be subject to an applicable Food and Drug Administration (FDA) and approval for COVID-19 use;
  3. (a) be a new U.S. nonprovisional or international (PCT) patent application, or (b) claim priority to one U.S. non-provisional utility or plant patent application, or to one international (PCT) patent application;
  4. be accompanied by the proper form (USPTO sb0450), and
  5. be filed electronically through the USPTO website.

Requirements and instructions for filing patent applications under this COVID-19 Prioritized Examination Pilot Program (COVID Fast Track Program) are provided on a dedicated USPTO webpage. The complete USPTO announcement for the COVID Fast Track Program can be found in the Federal Register. For questions regarding the COVID-19 Fast Track Program and whether you might be an appropriate applicant, please feel free to reach out to your Cole Schotz attorney.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.