By David Ward
How Has COVID-19 Affected Intellectual Property Filing Timings in the United States?
A lot changed in March 2020, when COVID-19 hit the United States. Most people have been working remotely and are adjusting to a new, distanced “normal.” The United States Patent and Trademark Office (USPTO) and Copyright Office are no exceptions, and thankfully the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, has provided some relief from the disruptions. Here are how the different offices have been impacted, and steps that have been taken to fight back against the novel coronavirus.
On March 15th, the USPTO closed its doors to the public indefinitely due to the coronavirus outbreak. The following day, it declared the coronavirus outbreak to be an “extraordinary situation” within a regulated meaning, which allowed for the suspension of some typical rules. With this declaration, some petition fees were waived for those who had patent and trademark applications affected by the outbreak. A few days after that, handwritten signature requirements were waived.
The true relief began when the CARES Act passed. On March 27th, when the CARES Act was signed into law, the USPTO was allowed to extend the time allowed for certain patent and trademark filings. As of June 9, 2020, most domestic United States patent applications, reexamination proceedings, and proceedings before the Patent Trial and Appeal Board that were due between March 27, 2020, and May 31, 2020 (or June 30 for small and micro entities) will now be considered timely if filed on or before July 1, 2020.  Any impacted filings must be accompanied by a statement that the delay in filing or payment was due to the COVID-19 outbreak.
Similarly, most responses, statements, notices, priority filings, and renewals relating to trademarks that were due between March 27, 2020, and May 31, 2020, were considered timely if filed on or before June 1, 2020. Since then, the USPTO has stated that trademark owners who were unable to submit timely responses due to the outbreak will continue to have their petition fees for reviving applications or reinstating registrations waived when submitted with a COVID-19 related statement explaining the delay. The USPTO also indicated that parties involved in TTAB proceedings that were interfered with due to the outbreak can request or move for extensions, as appropriate.
As of June 12, 2020, the USPTO also announced an extension of the time period for petitioning for rights of priority or benefit in a patent application that ended between March 27, 2020, and July 30, 2020. These petitions will now have their fees waived, and time period for petitioning extended to at least July 31, 2020.
Extending deadlines has not been the only USPTO response to the outbreak, however. In early May, the USPTO launched the COVID-19 Prioritized Examination Pilot Program to incentivize COVID-related inventions from small entities. This program allows the first 500 qualifying small- or micro-entity size patent applicants to apply for priority one-year examinations of inventions related to COVID-19. Applicants must apply under the COVID-19 Prioritized Examination Pilot Program with Pilot Program Form PTO/SB/450.
In the first month of the program, 83 priority COVID-related applications were filed, and 11 were granted priority status. As of June 15, 2020, the program was extended to allow trademark and service mark applicants to petition for prioritize initial examination of COVID-19 related marks as well.
The USPTO also launched a centralized online COVID-19 Response Resource Center on June 3, 2020. This resource center includes a “Patents 4 Partnerships” IP user-marketplace platform, which connects inventors and potential licensees to expedite discovery and development of new COVID-19 treatments and tests. Also included in the Response Resource Center is the Prioritized Examination Pilot Program, and abundant resources on further relevant updates.
After the outbreak, the Copyright Office and Library of Congress have similarly closed their doors to the public. The CARES Act also granted authorization to the Copyright Office to modify their procedures as needed in response to the COVID-19 pandemic.
The primary change implemented by the Copyright Office affects the timing requirements for statutory remedies for infringement. Typically, a copyright owner is awarded set statutory damages if a work is registered either prior to the infringement, or within three months of the work’s first publication. This gives copyright owners incentives to register as soon as possible, since owners can generally receive greater infringement damages with a lower litigation cost if their copyright is already registered. However, with the COVID-19 disruptions, many registrations were delayed.
In response to the issue, the Acting Register temporarily adjusted the statutory timing for people that could not submit electronic applications or physical deposits during the “disruption period,” which currently is until July 10, 2020. For those unable to submit a required physical deposit, the eligible three month window after publication will still be available as long as any required physical deposits are submitted within 30 days after the disruption ends. Any applicants unable to submit an electronic or physical application during the disruption will have their three month window tolled for the entire duration of the disruption. However, all adjusted timings require a sworn statement that the delay is due to the COVID-19 outbreak.
It is also important to note that copyrights can still be registered at any time, though. These adjustments only affect those who wish to claim statutory damages for infringement within three months of the initial publication and have not previously registered the copyright.
Further adjustments were also made for notices and payments of compulsory music license royalties. Typically, when a musician receives a compulsory license to record copyrighted material, they are required to serve a notice of intention and deliver monthly statements of accounts with royalty payments to the original copyright owner.  Any notices and statements that were previously sent in paper format have now been similarly tolled for the duration of the disruption if some alert is sent to the original copyright owner. However, royalty payments are still required, unless a certified statement is made that payments cannot be made with supporting evidence.
As we are all more than aware, we receive more information and data about this ongoing pandemic seemingly daily. Thankfully, the emergency powers granted to the USPTO and Copyright Office by the CARES Act give the agencies broad authority to adjust and modify timings as needed to respond to the dynamic situation. Some of these deadlines may be further extended, or they may perhaps be allowed to expire and return to normal. But it is heartening to see these agencies take steps to tackle the ongoing issues with flexibility, as intellectual property will be crucial for fighting the coronavirus, as well as economic recovery.
 Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116–136 (2020).
 USPTO notices regarding COVID-19, USPTO.gov, https://www.uspto.gov/coronavirus (March 15, 2020).
 United States Patent and Trademark Office, Relief Available to Patent and Trademark Applicants, Patentees and Trademark Owners Affected by the Coronavirus Outbreak, (March 16, 2020), https://www.uspto.gov/sites/default/files/documents/coronavirus_relief_ognotice_03162020.pdf; see 37 CFR 1.183; 37 CFR 2.146.
 See 35 U.S.C § 41(a)(7); 37 CFR 2.66(a)(1), 2.145(d)(1)
 Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116–136, § 12004(a) (2020).
 Patents and Patent Trial and Appeal Board (PTAB) FAQs: Extension of Deadlines under the CARES Act, USPTO.gov, https://www.uspto.gov/patent/laws-and-regulations/cares-act-faqs (Updated June 9, 2020).
 United States Patent and Trademark Office, Notice of Waiver of Trademark-Related Timing Deadlines under the Coronavirus Aid, Relief, and Economic Security Act, (April 28, 2020), https://www.uspto.gov/sites/default/files/documents/TM-Notice-CARES-Act.pdf
 United States Patent and Trademark Office, May 2020 Update Regarding Certain Trademark-Related Timing Deadlines under the Coronavirus Aid, Relief, and Economic Security Act and Other Relief Available to Applicants, Registrants, and Others, (May 27, 2020), https://www.uspto.gov/sites/default/files/documents/TM-Notice-CARES-Act-2020-05.pdf
 United States Patent and Trademark Office, Notice of the United States Patent and Trademark Office’s COVID-19 Outbreak Relief Relating to Restoring the Right of Priority or Benefit to Patent Applicants, (June 12, 2020) https://www.uspto.gov/sites/default/files/documents/restoration-relief-2020-06.pdf
 Id.; see 35 U.S.C §§ 172, 119(a), (e).
 COVID-19 Prioritized Examination Pilot Program, USPTO.gov, https://www.uspto.gov/initiatives/covid-19-prioritized-examination-pilot (Updated June 4, 2020).
 Found at: https://www.uspto.gov/sites/default/files/documents/sb0450.pdf
 Supra, note 10.
 USPTO announces COVID-19 Prioritized Examination Program for certain trademark and service mark applications, USPTO.Gov, https://www.uspto.gov/about-us/news-updates/uspto-announces-covid-19-prioritized-examination-program-certain-trademark (Updated June 15, 2020).
 Patents 4 Partnerships: IP Marketplace Platform, https://developer.uspto.gov/ipmarketplace/search/patents (last visited June 10, 2020).
 17 U.S.C. § 710.
 17 U.S.C. § 412.
 Operations Updates During the COVID-19 Pandemic, Copyright.gov, https://www.copyright.gov/coronavirus/ (updated May 1, 2020).
 17 U.S.C. § 115.
 Supra, note 14.