COVID-19 Prioritized Examination Pilot Program

May 11, 2020

Emma L. Frank

This article is part of Wolf Greenfield's COVID-19 Resource Center. To access the full resource center, click here.

The United States Patent and Trademark Office (USPTO) announced a new program designed to prioritize examination of patents geared towards the prevention or treatment of COVID-19.

Claims must cover “a product or process related to COVID-19” and “must be subject to an applicable FDA approval for COVID-19 use” to qualify for the program. There can be no more than four independent claims and 30 total claims. Additionally, the application cannot claim priority to more than two prior filed non-provisional US applications or international applications that designate the United States.

To qualify, patent applicants must also qualify for small—i.e., an individual, a small business with less than 500 employees, a university, or a 501(c)(3) nonprofit organization—or micro—i.e., qualifying for small entity status and not having been named on more than four patents while having an income below three times the median or income is from an Institution of Higher Learning—entity status. The Director of the USPTO, Andrei Iancu, recognized that “independent inventors and small businesses are often the difference makers when it comes to cutting-edge innovation and the growth of our economy. They are also in most need of assistance as we fight this pandemic. Accelerating examination of COVID-19-related patent applications, without additional fees, will permit such innovators to bring important and possibly life-saving treatments to market more quickly.”

Applications that qualify will receive prioritized examination without any additional fees. Under the prioritized examination, the USPTO will attempt to reach a final disposition on the application within 12 months. If applicants promptly respond to USPTO communications, however, the USPTO believes it may be able to reach final disposition within six months. One corollary of the expedited review is that any request for an extension of time to reply will terminate your participation in the program and place your application in the normal queue for review by the examiner.

The program is slated to run until the USPTO accepts 500 requests for prioritized examination, at which point the USPTO may extend the program or modify or terminate it based on the resources needed to administer the program. If you believe that your invention may qualify for the program, you should discuss this with your attorney promptly to make sure that you can take advantage of it.