USPTO Announces Deferred-Fee Provisional Patent Application Pilot Program to Foster Innovation in Combating COVID-19

Chiesa Shahinian & Giantomasi PC

On September 16, 2020, the United States Patent and Trademark Office (“USPTO”) announced a deferred-fee provisional patent application pilot program for inventions that combat COVID-19.

A provisional application is a less formal patent application that may be filed with the USPTO in order to establish an effective filing date for the technical material disclosed in the provisional patent application. A non-provisional patent application may claim priority to the provisional patent application if filed within one year of the filing of the provisional application. While provisional applications are not published, the USPTO is implementing a program to incentivize early disclosure of certain provisional applications relating to COVID-19.

Under the deferred-fee provisional patent application pilot program, an applicant can file a provisional application and defer payment of the provisional application filing fee until the filing of a corresponding non-provisional application. In order to defer payment, the applicant must agree that the subject matter disclosed in the provisional application will be made available to the public via a searchable collaboration database maintained on the USPTO’s website. In addition, the subject matter disclosed in the provisional application must be subject to an applicable Food and Drug Administration ("FDA") approval for COVID-19 use, whether such approval has been obtained, is pending, or will be sought prior to marketing the subject matter for COVID-19.

The USPTO realizes that the information disclosed in patents and published patent applications often provides a starting point for additional innovation and the present COVID-19 health crisis could benefit from such innovation. Accordingly, the USPTO wants innovators to have access to published patent applications regarding COVID-19 as soon as possible via this pilot program which is scheduled to accept applications for 12 months beginning on September 17, 2020.

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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