As of June 16, 2020, the U.S. Patent and Trademark Office has implemented a program to prioritize the examination of trademark applications that cover goods and services that help prevent, diagnose, treat, or cure COVID-19. The following qualifying COVID-19 medical goods or services may be eligible for prioritized examination:

  • Pharmaceutical products or medical devices such as diagnostic tests, ventilators, and personal protective equipment, including surgical masks, face shields, gowns, and gloves, that are intended to prevent, diagnose, treat or cure COVID-19 and are subject to approval by the U.S. Food and Drug Administration (FDA) – including
    • Applications for Investigational New Drug (IND),
    • Investigational Device Exemption (IDE),
    • New Drug Application (NDA),
    • Biologics License Application (BLA),
    • Premarket Approval (PMA), or
    • Emergency Use Authorization (EUA).
  • Medical services or medical research services for the prevention, diagnosis, treatment of, or cure for COVID-19.

In order to request prioritized treatment, applicants must first file the application and then file a petition to the Director requesting that the initial examination of the application be advanced. The USPTO is waiving its normal petition fee under the prioritized examination program.

The petition must include a statement of facts, supported by an affidavit or declaration under 37 CFR§ 2.20, listing (1) the applicant’s COVID-19 related goods and services, (2) an explanation of why they qualify for prioritized examination, and (3) the section of the Code of Federal Regulations (CFR) that regulates the goods and services. If granted, the process should expedite examination by approximately two months.

This article appeared in the June 2020 issue of MarkIt to Market. To view our past issues, as well as other firm newsletters, please click here.