New USPTO COVID-19 Initiatives

Foley & Lardner LLP

Foley & Lardner LLP

As much of the United States is taking steps towards “getting back to normal,” the USPTO continues to implement programs to encourage investment and innovation in technologies addressing the COVID-19 pandemic. Recently, the USPTO expanded the Patents for Humanity program to add a category for COVID-19 related inventions and separately rolled out a new pilot program offering fee-free expedited ex parte appeals for patent applications related to certain categories of COVID-19 inventions. 

Patents For Humanity

The Patents for Humanity program is designed to recognize innovators using patented or patent pending technologies for humanitarian purposes, addressing what the USPTO refers to as “global humanitarian challenges.” The original award categories included the fields of household energy, living standards, medicine, nutrition, and sanitation. For example, the 2020 awards recognized inventions in medical fields and waste-water treatment.

For 2021, the USPTO is limiting the program to COVID-19-related technologies. As described in this announcement, the invention “should involve, but is not limited to, tracking, diagnosing, preventing, or treating COVID-19.” The USPTO asks applicants to identify whether their invention is a “humanitarian use” or “humanitarian research” invention (e.g., inventions used for research such as new “molecules, drug discovery tools, gene sequencing or splicing devices, special-purpose seed strains, data analysis software, or other research material).

For a “humanitarian use” invention, the applicant should show:

  • Subject matter – The applicant’s invention … effectively addresses the COVID-19 pandemic.
  • Target population – The applicant’s invention targets those affected by the COVID-19 pandemic.
  • Contribution – The applicant took meaningful actions to make the technology more available to address the COVID-19 pandemic.
  • Impact –The applicant’s contributions have significantly advanced the deployment of the technology to benefit the public.

For a “humanitarian research” invention, the applicant should show:

  • Subject matter – The applicant’s invention … effectively supports research by others, e.g., as a tool or input.
  • COVID-19 field – The research by others clearly targets the COVID-19 pandemic.
  • Contribution – The applicant took meaningful actions to make the technology more available for research by others working on the COVID-19 pandemic.
  • Impact – The research by others has a high potential for significant impact in the COVID-19 field.

Patents for Humanity awardees will be recognized at a public awards ceremony and will receive what the USPTO refers to as “an acceleration certificate.” The “acceleration certificate” can be “redeemed” to accelerate certain USPTO proceedings:

  1. an ex parte reexamination proceeding, including one appeal to the PTAB from that proceeding;
  2. a patent application, including one appeal to the PTAB from that application; or
  3. an appeal to the PTAB of a claim twice rejected in a patent application or reissue application or finally rejected in an ex parte reexamination.

IPRs and PGRs are not eligible for acceleration, nor are CBMs, derivation proceedings, supplemental examinations, inter partes reexaminations, or interference proceedings.

New for this year, under the Patents for Humanity Improvement Act, Patents for Humanity acceleration certificates are transferable, including by sale, to other parties.

The 2021 Patents for Humanity application period opened April 1, 2021. Its closing date has not yet been announced. Candidates can start the application process here.

Expedited Ex Parte Appeals

Under the more recently announced “Fast-Track Pilot Program for Appeals Related to COVID-19,” applicants do not have to compete to obtain expedited handling of an ex parte appeal of certain COVID-19-related patent applications. But, this program is limited to applications in which the claim(s) “cover a product or process related to COVID-19” that will be subject to FDA review and approval for COVID-19 use.

This program is similar to the Fast Track Appeals Pilot Program, but no petition fee is required.

This program opened April 15, 2021, and will continue until 500 appeals have been expedited under this program (which will be counted separately from the fee-based Fast-Track Appeals Pilot Program). The USPTO petition form is available here.

Innovation Against COVID-19

The USPTO’s continued efforts to encourage investment and innovation in technologies addressing COVID-19 reflect the reality that the “novel” coronavirus may be here to stay. Indeed, COVID-19 continues to impact companies in all sectors of the economy. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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