Relief Available to Patent and Trademark Applicants, Patentees and Trademark Owners Affected by the Coronavirus Outbreak

The United States Patent and Trademark Office (USPTO) considers the effects of the Coronavirus outbreak that began in approximately January 2020 to be an “extraordinary situation” within the meaning of 37 CPR 1.183 and 37 CPR 2.146 for affected patent and trademark applicants, patentees, reexamination parties, and trademark owners.

USPTO Alexandria Campus Building

Patent applicants will be able to file a petition to revive and the PTO will waive the fee for those “who were unable to timely reply to an Office communication due to the effects of the coronavirus outbreak, which resulted in the application being held abandoned or the reexamination prosecution terminated or limited.”

The petition to revive “must include a statement that the delay in filing the reply required to the outstanding Office communication was because the practitioner, applicant, or at least one inventor, was personally affected by the Coronavirus outbreak such that they were unable to file a timely reply.”

[coronavirus_relief_ognotice_03162020]

26 thoughts on “Relief Available to Patent and Trademark Applicants, Patentees and Trademark Owners Affected by the Coronavirus Outbreak

  1. 2

    Notes from the underground.

    The real news is what is going to happen to patent budgets at public firms trying to make their Wall Street numbers.

    My guess is that the patent budgets are going to drop 25-80%.

    Also, China is cutting back on subsidizing patent filings so we are going to see a reduction in the China subsidy. Original US filings are only about 150K and dropping or holding steady.

    So, my prediction is that if Trump can’t pull the plane out of the nose dive that we are going to see a large drop in patent filings over the next 9 months at the PTO. I’d guess maybe 30 percent?

    The reality is that a large percentage of people see patent filings as junk now and there are large numbers of companies that are now seeing China (CN, KR, JP) and the EPO as better bets than the USA. Many see enforcement in the USA as close to non-existent.

    The USPTO is going to feel it. IPR petition went from 1600 to 1200 in a year. I hope those patent judges that are freed up are put to work to get us quick turnarounds on the appeals.

    I think we are getting close to the collapse of the US patent system. It feels like a large structure where the support beams have rusted away or been eaten away by the acidic decisions of the Scotus, e.g., eBay, KSR, Alice, Mayo, etc., and the stacking of the CAFC by Obama with judges that are judicial activists that do not think there should be intellectual property.

    Will it make a bang or will the spin masters manage to have it ignored by the press? Probably prop up the tools of their trade like Lemley.

    Be interesting to see too whether Trump will allow layoffs or will he prop up the workers at the PTO to stop the appearance of layoffs?

    I think the prospect for change is close to zero when the profits at SV are at stake and the US election system is controlled by big money with lobbyist there everyday making sure IP rights continue to erode.

    1. 2.1

      Just look at the misinformation that comes out. Just read what Lemley (Mr. I am making millions burning down patents and the IP system in the USA and loving it) writes. I’d classify it as unethical PR at best. The fact that it passes as “scholarship” is beyond reason.

      1. 2.1.1

        Completely agree — and why I have pointed out that attorneys have a code of ethics based on our proximity to the formation of law, and it is absolutely unreal that those who teach attorneys AND are also active directly attempting to influence the formation of law have no meaningful code of ethics or enforcement of ethics (and instead fester in the non-merit driven cessp00l of academia and the groupthink advancement mechanisms therein).

    2. 2.2

      And in CN the patent applications have dropped 10 percent. Probably cost savings from the economic problems of the trade war.

      You have to wonder how IPRs can drop 25% and there be no announcement from the PTO as to what they are doing with all that freed patent judge time.

    3. 2.3

      Night Writer,

      (sigh)

      You cheapen your message by attempting too much.

      You certainly have a point about the US Sovereign and what may happen here.

      It should be clear to you that I ‘get’ that.

      But you overextend yourself and attempt to make other items support that position when those other items simply do not.

      For example, “IPR petition went from 1600 to 1200 in a year. I hope those patent judges that are freed up are put to work to get us quick turnarounds on the appeals.” has nothing to do with your economic forecast. The drop in IPR is a natural evolution based on low hanging fruit having already been picked plus new applicants changing their writing techniques to be more ‘IPR-proof.’ The appeals backlog is what it is, and you provide NO causal relationship to even begin to support any link that you might want to lean on.

      As to “Probably prop up the tools of their trade like Lemley.” I do not recognize what you are trying to say. What does “prop up” have to do with “tools of the trade” and how does Lemley prop up anything?
      (note that you may have a point here – I just am not seeing what that point may be).

      As to: “interesting to see too whether Trump will allow layoffs or will he prop up the workers at the PTO to stop the appearance of layoffs?” — this is a new one, and appears to be a variant of your past hopes that Trump will be some sort of saving grace (he won’t – for a variety of reasons). I just don’t see how the patent office which is funded SOLELY on innovator dollars can avoid a RIF if there is a substantial drop in applications and the accompanying innovator dollars. What exactly is the mechanism that you see in avoiding layoffs, as tied to the necessary budgeting process for the USPTO? I am not talking about any “exception” that may be invoked due to the corona virus pandemic, mind you; but instead I am talking about the annual budget process and the fact that the USPTO is neither a profit center nor a free floating cost center. The economic dynamics here just do not fit into your point, and you weaken your position by attempting to force a point that you appear not to understand.

      As I said, I do not disagree with the major thrust of your point. But not all of what you write supports that major thrust. You would strengthen your position by being more selective.

      1. 2.3.1

        Wow. What a judgmental post anon. You seem to want to focus on a couple of trees and not the forest.

        You need to spend more time and think about what people write anon. What you do is spend 2 seconds to see how something fits into your narrative and then spit out the differences. Spend some time to think.

        For example, you ask what IPRs and patent judges have to do with it and then go to talking about layoffs. You don’t even see the connection. There has been a 25% reduction in IPRs and no layoffs of patent judges. So what has happened to them? The PTO to my knowledge has made no announcements about this. We don’t know that they have been put to work on the appeals backlog to my knowledge. And the PTO hasn’t announced what they will do when/if that is eaten through. So what they did with the patent judges may be the same of examiners. Maybe they will be put to work to eat through all the backlogs before a layoff. And it is indicative how the PTO may react if patent application drop 25% over the next year.

        You need to spend more time thinking and less time judging.

        Your comments like “You cheapen your message by attempting too much.” are really quite annoying particularly when it is clear that you haven’t given any thought to what I said.

        1. 2.3.1.1

          Judgmental…?

          That’s called “applied critical thinking.”

          Read my post again — I CLEARLY provide for the forest (so your reply is only in the weeds with that retort).

          You need to spend more time and think about what people write anon.

          This is clearly what YOU need to do, Night Writer.

          This is abundantly clear from the fact that I ‘get’ your larger thrust and can distinguish among the points that may support that larger thrust and the points that do not.

          YOU are the one straining to fit everything into a narrative. Bottom line is that NOT everything fits into that narrative (and that not everything NEED to fit into that narrative). You lower your credibility by trying to make everything fit, and then you lower your credibility even more with a knee je r k reaction that anyone disagreeing with you somehow must not have taken the time to understand what you are saying.

          A case at point here is that my challenge has forced you to ADD and refine your comment on Appeals backlog. Clearly, what you first said was simply not enough to support your proposition. No amount of re-reading your first post would supply the new thoughts that you have now added. In this manner, my challenge has already strengthened your view and the better response from you would have been a “Thank you.”

          It is abundantly clear that I HAVE thought plenty of your position. It is bogus of you to state otherwise — especially as seen here, it is merely you soothing your own ego.

      2. 2.3.2

        >>Will it make a bang or will the spin masters manage to have it ignored by the press? Probably prop up the tools of their trade like Lemley.

        This is a pretty clear statement to anyone that spends more than .1 seconds thinking about it. Will the SV spin masters so down play the fall of the patent system that the media will ignore it? And the reference to Lemley as a “tool of their trade” is also pretty clear. Lemley generates article after article to put spin on the fall of the patent system. He writes that applications are rising when US application are not. Etc. Etc. Etc.

        Try to spend some time to think and not just see how something fits into the narrative in your head.

        1. 2.3.2.1

          “Tools of the trade” and “prop up” remain unclear.

          This is NOT a matter of penetrating through Lemley’s CRP (as YOU should note that I too expose Lemley as a fraud — but then again that would take you to follow your own exhortations of others).

          Most definitely this is a problem if you and the narrative in YOUR head. My reply is very much on point — no matter how uncomfortable that may have made you feel.

      3. 2.3.3

        And as another simple example, Lemley may come out with an article about how a drop in US applications by 25% is good as it indicates a culling of the lower quality patent applications that weren’t actually inventions. I can see the paper now and the 1,000’s of people that are paid to push the SV agenda touting the paper as genius and the Scotus quoting from it facts that Lemley fabricates.

        But anyone that spent more than .1 seconds thinking about it would realize that, anon.

        1. 2.3.3.1

          Great — not at point here and not ANYTHING that I have not said myself already.

          Heed your own advice son.

          1. 2.3.3.1.1

            ? anon, you need to read what people write and think.

            anon wrote: “not at point here”?

            anon wrote “As to ‘Probably prop up the tools of their trade like Lemley.’ I do not recognize what you are trying to say.”

            anon, it is fine if you don’t want to read what I write, but stop skimming it and then writing ridiculous responses. Really annoying.

            1. 2.3.3.1.1.1

              Not skimming – and the annoyance is on you.

              Your point here about “Probably prop up the tools of their trade like Lemley.” remains unclear.

              You seem to be adding to and moving your message away from propping up ‘tools of the trade like Lemley’ to a different statement that Lemley will engage in his usual nonsense, his bag of tricks, the tools of Lemley’s trade, in order to continue misconstruing what is going on.

              As I directly replied: “(note that you may have a point here – I just am not seeing what that point may be).” — the proper response from you would have been: Thank you, let me clarify that point.

              Instead, you wanted to tend to your bruised ego.

              1. 2.3.3.1.1.1.1

                “the annoyance is on you”

                No. No, it’s not. You’ve got to be somewhere on the spectrum.

    4. 2.4

      While not exactly analogous, IIRC in the early 2000’s when the so-called “dot.com bubble burst” occurred, there was a layoff of USPTO Trademark Examiners (who are attorneys). I don’t recall how many or what the percentage of the total Examiners was involved.

      Feel free to correct me if my memory is faulty.

      1. 2.4.1

        In 2002, they laid off one third of trademark examiners, after two years of reduced filings.

    5. 2.5

      Yes it’s very worrying to contemplate a drop in … patent budgets.

      LOL

      1. 2.5.1

        Your cognitive dissonance is noted.

  2. 1

    Is this really covering large law firms that have to close their entire offices?

    1. 1.1

      Do you have a reason why not?

    2. 1.2

      Likely. Lawyers at large office tend to know nothing about the mechanics of getting responses filed, and are dependent on their support staff. It’s not clear to me why they should be excused for that, particularly why petition fees should be waived. If an office isn’t set up so that attorneys working at home can file their own responses, or hasn’t trained its attorneys in PTO filing practices, that might or might not be a reason to revive, but it’s no reason the rest of us should have to subsidize their work. If the PTO is going to waive petition fees, it should waive them for everyone.

      It may also help out pro se inventors, but they represent a negligible percentage of filers.

      1. 1.2.1

        >If the PTO is going to waive petition fees, it should waive them for everyone.

        I agree.

      2. 1.2.2

        How is there any “rest of us subsidizing their work” going on?

        1. 1.2.2.1

          You really need this explained?

          Solo practitioner knows how to file, so gets his response in on time. Biglaw firm lawyer doesn’t and misses the date, but doesn’t pay the petition fee. Yet it still takes petitions staff time to process his petition. So everyone else’s fees are going to subsidize the petition staff time dealing with the Biglaw petition.

          1. 1.2.2.1.1

            There is no subsidizing as my fees (as a purported solo practitioner) do not change.

            So yes, you need to provide a better explanation to support the assertion.

    3. 1.3

      Just from reading the announcement, it sounds like this is a waiver of the petition fee only. Presumably you would still have to make a showing of “unavoidable” or “unintentional” abandonment in order to get your petition granted. Would that showing be more difficult for a biglaw firm to make compared to a lone patent attorney? I have no idea.

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