USPTO Launches COVID-19 Fast-Track Appeals Pilot Scheme

Effective April 15, 2021, the Patent Trial and Appeal Board (PTAB) implemented the Fast-Track Pilot Program for appeals related to COVID-19. The PTAB will accept petitions for expedited resolution of ex parte appeals for COVID-19-related inventions. A COVID-19-related appeal for eligibility into the pilot program must relate to a product or process that is subject to an applicable U.S. Food and Drug Administration (FDA) approval for COVID-19 use. There is no cost to submit an appeal under this program. Intellectual Property Magazine interviewed Finnegan partner Jeff Jacobstein for his insight on the pilot program.

Jeff said:

"The office’s efforts to respond to the ongoing pandemic by promoting COVID-19 related innovation through the fast-track appeal program should be applauded. That being said, the pilot program could benefit from certain clarifying changes. For instance, the office’s notice indicates that applications covered by the pilot must 'claim a product or process subject to an applicable FDA approval for COVID–19 use. Such approvals may include, but are not limited to IND application, an IDE, an NDA, a BLA, a PMA, or an EUA'. In many instances, COVID-19 related innovations are at an earlier stage in the regulatory cycle and may not yet have accumulated sufficient information to merit an accepted IND at the time when a patent application is being examined, but would otherwise benefit from a speedily granted patent under the stated objectives of the pilot program." Consequently, applicants may not be properly incentivized to utilize the program to timely prosecute life-saving innovations if they are patentable prior to any of the regulatory acts currently identified by the COVID-19 Notice. It is also unclear whether the eligibility requirements for the pilot program would encompass diagnostic innovations, given the focus on FDA regulatory approval. To more broadly encourage COVID-19 innovations, the Office may want to consider clarifying whether the pilot program embraces claims to diagnostic tools and methods."

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