In enacting the Coronavirus Aid, Relief and Economic Security (CARES) Act, Congress gave the U.S. Patent and Trademark Office (USPTO) and the Copyright Office the authority to “toll, waive, adjust, or modify any timing deadline” during the emergency period. The CARES Act defines the emergency period as the period starting from the date of enactment (March 27, 2020) and ending 60 days after termination of the COVID-19 national emergency. Recently, both the USPTO and the Copyright Office issued notices to extend certain deadlines to accommodate those affected by COVID-19.
The Patent Notice states that the due date for certain proceedings can be extended 30 days from the initial date it was due. The extension applies to those due dates occurring from March 27, 2020 to April 30, 2020. However, the filing must be accompanied by a statement that the delay was due to the COVID-19 outbreak in order to obtain the 30 day extension. Accordingly, types of proceedings qualifying for delay include:
- Replies to Office Actions or notices
- Issue fees
- Notice of Appeals
- Appeal Briefs
- Reply Briefs
- Appeal forwarding fees
- Oral hearing requests before the Patent Trial and Appeal Board (PTAB)
- Response to a substitute Examiner’s Answer
- Amendment reopening prosecution in response to PTAB decision
- Requests for rehearing in response to PTAB decision
- Maintenance fees
The Trademark Notice allows for the same 30 day extension from the initial due date. The extension applies to those due dates occurring in the same time period of March 27, 2020 to April 30, 2020. In order to qualify for the extension, the filing must be accompanied by a statement that the delay was due to the COVID-19 outbreak. Accordingly, types of proceedings qualifying for delay include:
- Response to an Office Action, including a Notice of Appeal from a final refusal
- Statement of use or request for extension of time to file a statement of use
- Notice of opposition or request for extension of time to file a notice of opposition
- Filing a priority filing basis under 15 U.S.C. § 1126(d)(l) and 37 C.F.R. § 2.34(a)(4)(i)
- Filing a priority filing basis under 15 U.S.C. § 1141g and 37 C.F.R. § 7.27(c)
- Filing a transformation of an extension of protection to the United States into a U.S. application under 15 U.S.C. § 1141j(c) and 37 C.F.R. § 7.31(a)
- Affidavit of use or excusable nonuse filings
- Renewal application filings
Copyright registration deadlines can also be extended as long as copyright owners provide evidence that the delay was due to the COVID-19 outbreak. In addition, individuals who are prevented from serving or recording notices of termination are provided additional time. Also, individuals filing online can submit an electronic deposit of their work even if a physical copy is required.
While the each agency remains open online, all 3 physical offices have closed. However, employees now work remotely and all face-to-face meetings between applicants and examiners have been canceled. In addition, hearings at the PTAB and Trademark Trial and Appeal Board (TTAB) are canceled until further notice. Accordingly, these measures assist to promote social distancing.