By Brian H Buck, Registered Patent Attorney

In these turbulent times, when individuals, families, businesses, and governments grapple with the effects of the Coronavirus (COVID-19), empathy and compassion abound for all of those affected.  Still in these times the essential services of healthcare workers, police departments, fire departments, delivery services, and governments must continue.  They must continue so that the public is assured of knowing that even during a pandemic, such as COVID-19, our essential services continue. Even the coronavirus is not formidable enough to interrupt our ability to meet what we’ve come to expect as necessary functions of society.

Picking up on our prior post, it is often the case that contracts between private parties will include a “force majeure” (“superior force” in Latin) provision discussing that parties may be excused from performance should such a “superior” force occur.  Typically, such a force may be an act of God or other event, such as perhaps the COVID-19 pandemic, i.e., a circumstance which was both beyond the reasonable control of the parties seeking to be excused and one that was not anticipated as part of the underlying contract.

In this vein, the patenting process, and ultimately the issuance of a patent in the United States involves a contract between the patent applicant and the U.S. government.  The contract entails the disclosure and eventual contribution of the applicant’s invention to the public in exchange for a bundle of exclusionary rights which are then granted by the government to the applicant upon patenting.  Unlike the contracting process between private parties, however, the patent law does not consider a force majeure as a qualifying exception to forestall the patenting process and its obligations of applicants. 

Of course, the United States Patent and Trademark Office (USPTO) as an agency of the U.S. Department of Commerce, like other government agencies, has not remained unaffected by COVID-19.  For instance, in-person contact between agency personnel and applicants has been curtailed.  Yet, the USPTO remains otherwise fully functional in executing the patenting process and supporting the needs of applicants.  For this, we ought to remain grateful since times such as these and their attendant needs may be a source of inspiration to participate in the patenting process through contribution of innovative and problem-solving solutions.   Those involved in the areas of medical devices, telemedicine, digitization, supply-chain management, and sanitization may welcome particularized solutions. Whether in the realm of these or other areas of need facing society today, it is important and comforting to realize that the patent law, and in particular the patenting process, goes on notwithstanding major societal challenge.

Below are a number of topics addressed by the USPTO, including:

The USPTO has waived the requirement for original handwritten signatures.

For the USPTO, “force majeure” equals an “extraordinary situation” within the meaning of 37 CFR 1.183 for affected patent and trademark applicants, patentees, reexamination parties, and trademark owners. If an “extraordinary situation” occurs the USPTO is given the power to waive certain requirements, and here they are waiving the  requirements of 37 CFR 1.4(e)(1) and (2) for an original handwritten signature for certain correspondence. Interestingly, the requirements of 37 CFR 1.4(e)(1) and (2) regarding disciplinary actions and certain credit card payments are the only remaining USPTO requirements for original handwritten, ink signatures, and there are no other remaining requirements for original handwritten, ink signatures. Historically, the USPTO would only accept handwritten signatures.

Relief for USPTO customers affected by COVID-19

The United States Patent and Trademark Office (USPTO) considers the effects of coronavirus to be an “extraordinary situation” within the meaning of 37 CFR 1.183 and 37 CFR 2.146 for affected patent and trademark applicants, patentees, reexamination parties, and trademark owners. Therefore, the USPTO is waiving petition fees in certain situations for customers impacted by the coronavirus. Waivers or extensions of dates or requirements set by statute are not granted by this circumstance.

USPTO offices closed to the public

Out of an abundance of caution for the health and safety of the public and USPTO employees, all USPTO offices will be closed to the public beginning Monday, March 16, 2020 until further notice. USPTO offices will remain open for employees, contractors, and those with access badges. Unless otherwise notified, USPTO operations will continue without interruption. Patent and trademark application deadlines and other deadlines are not extended. Those with official business with the USPTO should reach out to their points of contact with any questions or through the CONTACT US link. Thank you for your cooperation. We regret any inconvenience. For more information on coronavirus please visit: cdc.gov/covid19.

USPTO events 

The events page on USPTO.gov is the best place to find an up-to-date list of upcoming USPTO events. If an event will be postponed or canceled, we will update the listing to reflect the change.

Interviews, oral hearings and in-person meetings

Until further notice, examiner and examining attorney interviews, Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB) oral hearings, and other similar in-person meetings with parties and stakeholders scheduled to take place at USPTO offices on or after Friday, March 13, 2020 will be conducted remotely by video or telephone. Parties will receive further instructions on how to participate by video or telephone in advance of the interview, hearing, or meeting.

If you have any questions, please contact the following:

For patent examiner interviews, please contact the examiner or the examiner’s supervisor (SPE) directly. Additionally, if you have any questions about telephonic or video interviews in general or are unable to reach the examiner or SPE with respect to a particular interview, please email: ExaminerInterviewPractice@uspto.gov

For trademark examining attorney interviews, please contact the managing attorney.

For PTAB oral hearings, please contact PTABHearings@uspto.gov or call 571-272-9797.

For TTAB oral hearings, please contact TTABHearings@uspto.gov or call 571-272-8500.

For other in-person meetings, please contact your USPTO point of contact for that meeting.

USPTO building operating status

We are monitoring the guidance provided by Federal, State, and local officials for each region where we have offices. Please visit the regional office webpages for region-specific information.

USPTO Headquarters in Alexandria, VA

Elijah J. McCoy Office in Detroit, MI

Texas Regional Office in Dallas, TX

Rocky Mountain Regional Office in Denver, CO

Silicon Valley Regional Office in San Jose, CA

https://www.uspto.gov/coronavirus

The McHattie Law Firm continues to follow COVID-19 developments as they impact the workplace and will provide frequent updates on those developments. For assistance addressing issues in your workplace, feel free to contact us. 

This blog is for informational purposes only.  It does not constitute legal advice and may not be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction