Coronavirus Aid, Relief, and Economic Security (CARES) Act and the USPTO

The $2 trillion stimulus and economic rescue bill known as the CARES Act is moving forward in the Senate.  Although not generally a key aspect of the legislation, the current proposal on the table includes temporary authority for the USPTO Director to “toll, waive, adjust, or modify, any timing deadline” established by the patent or trademark laws or by prior PTO regulation.  In order to take action, the director must determine that the COVID-19 National Emergency:

(1) materially affects the functioning of the Patent and Trademark Office;

(2) prejudices the rights of applicants, registrants, patent owners, or others appearing before the Office; or

(3) prevents applicants, registrants, patent owners, or others appearing before the Office from filing a document or fee with the Office.

Here the “emergency” period is defined as the National Emergency declared by President Trump on March 13, 2020, as a result of the COVID–19 outbreak. The Director’s authority would begin with the enactment of the legislation and last until the end of the Emergency (including any renewals) plus 60 more days.  In addition, the whole thing sunsets in 2-years.

Dir. Iancu has privately indicated a need for the legislation, but has not stated publicly what if he would make any immediate actions or whether he would delegate his authority to the PTAB to make these determinations.

My reading of the proposal is that it provides authority to the USPTO Director but does not place any requirement on the Director to act. Thus, a particular party who experiences problems with filing or meeting other deadlines will not have a claim under the statute.

All of the deadlines are easy for the PTO Director to adjust with the one exception being the original filing date. In addition, international obligations may create some problems with adjusting PCT-related dates — although WIPO and the big-five are working through potential arrangements as we sit here today.

36 thoughts on “Coronavirus Aid, Relief, and Economic Security (CARES) Act and the USPTO

  1. 2

    Anyone know how the gov (us) is going to pay for this? Sell yet more gov (Corona / Covid) bonds to . . . who / which country/ies?

    The patent / TM provisions are good ones; as is Josh’s specific tolling of maintenance fees.

    Or, to keep the most $ coming in as possible, toll them just for small and micro entites.

      1. 2.1.1

        …and that never hurt anyone or ended a government, now did it?

        I think that there was an implied “how to do it without capsizing” in the question.

    1. 2.2

      They can literally just put a number in a bank account and that money is then there. I’ve watched it.

      1. 2.3.1

        . . . making this sound an awful lot like government counterfeiting.

        But, hey, who cares? What difference does it make?

        We’ll all be long gone before the trillions in total gov debt has to finally be paid back.

        Our children, grand children, great-grand children . . . the collective debt that we ran up . . . is now on your backs.

        How can we ever be forgiven for stealing your futures?

        1. 2.3.1.1

          “. . . making this sound an awful lot like government counterfeiting.

          But, hey, who cares? What difference does it make?

          We’ll all be long gone before the trillions in total gov debt has to finally be paid back.

          Our children, grand children, great-grand children . . . the collective debt that we ran up . . . is now on your backs.

          How can we ever be forgiven for stealing your futures?”

          You’re obviously not boned up on “modern monetary ‘theorylol’ “. You see, under modern monetary theory, the “reserve currency” which today is the dollar, backed by the US military (strongest in the world by far with longest reach by far) and its petrodollar status (all oil sales happen in dollars) can just balloon practically forever by continually making loans to back other loans forever. It’s all a giant debt peonage system for everyone but those at the top. And as long as everyone agrees to the debt system forever then it works forever. Or at least that’s the thinking. And as long as a certain few conditions are met on that lending.

          But truth be told I would rather spend these trilly than the trillies on wars.

  2. 1

    The Director should toll the 6 month grace period for paying maintenance fees. It would give small businesses some breathing room to make the increasingly difficult financial decision that comes at 7.5 and 11.5 years from issuance.

    1. 1.1

      Good idea. Many are in a cash crunch.

      1. 1.1.1

        I think the problem is that the PTO is going to be in a cash crunch.

        1. 1.1.1.1

          Very astute. As is so often forgotten**, the USPTO is entirely run on the funds provided by innovators. Having a ‘just say NO’ to innovation mindset is simply self-destructive in the long run. External shocks (such as a pandemic) serve as a lynch pin and tip the scales into an accelerated decline.

          This does more than one thing. This takes your long time projections AND ties into the non-innovation policy repercussions of the pandemic. As you have no doubt already picked up, Night Writer, the likes of Paul Morgan (and Ben on previous threads) will quickly attempt to distinguish your past prognosis from the current trigger point.

          But such obscures the major point that you have long stressed: being ‘anti-patent##’ is NOT a sustainable philosophy.

          ** the only time that it appears that the tie is noticed by those holding certain philosophies is in the negative spin that the Patent Office will grant unworthy patents in order to buoy up money collections.

          ## some will whine and moan at the term ‘anti-patent’ and claim that they ‘don’t know what that means,’ and of course, this is complete balderdash. These whiners are of course the very same people whose philosophies have been inimical to patent policies that would provide a strong and certain power to innovators that partake in the patent system and engage in the Quid Pro Quo.

          1. 1.1.1.1.1

            … speaking of those who are anti-patent, and who whine and moan at that label, have you noticed how Greg ‘I use my real name’ DeLassus has been absent of late?

            I suppose as inside counsel to a Pharma company, he may well have his hands full right now with non-patent matters.

        2. 1.1.1.2

          Seems like there’s a good chance we’re already in that recession.

          Still seems unlikely to me that there’ll be a RIF before it’s over. *shrug*

          1. 1.1.1.2.1

            VSIP and VERA come first. Then management can just stop signing various junior examiners actions to attrit some of them. You’re probably right that the Office won’t need to resort to RIFs.

            1. 1.1.1.2.1.1

              I don’t know if I believe management would deliberately inflict performance issues through holding back approvals, but they sure would dismiss the entire probationary class (it’s two years now, right?) before a RIF.

              I’m not wholly confident there’ll never be a RIF, but considering the last one took two years of buildup, I am quite confident that it will not happen during this recession.

              1. 1.1.1.2.1.1.1

                Meh, I am not sure that semantic spin of reducing an entire probationary class would not be considered a RIF as would apply to a discussion on a blog (being pedantic with semantics is basically an admission of the point being avoided).

                1. anon, my prediction has been clear for years. Now that it looks like it is actually happening the unethical Ben is doing whatever it can to try and foment confusion. It is really better to not respond or give consideration to people of such low moral and ethical quality.

                2. anon, Ben seems to just get off posting lies. He seems to live off of getting a rise out of people in playing his little troll games. He should be banned from the board. I am sure Gene would have kicked him off immediately.

                  He intentionally lies about facts. He plays all the games the anti-patent group do. Just f i l t h. They are right off the toilet bowl.

              2. 1.1.1.2.1.1.2

                It may not happen during the recession depending on how long it lasts. My predictions are that the layoff will happen, but that it may be during the next two years. Might even go out to three years as there may be some buffering in hopes of a rebound.

                But already what I said that the number of patent applications was going to significantly drop in the next recession is being predicted by other and in IAM magazine.

                So far things are playing out as I said they would.

                1. >>My predictions are that the layoff will happen, but that it may be during the next two years. Might even go out to three years as there may be some buffering in hopes of a rebound.

                  For what it’s worth, this long window was not clear the last time this came up.

                  Though I’d also say it rather makes the prediction a bit obvious. “I predict layoffs in [insert an industry] during or up to 5 years after the next recession” isn’t exactly bold.

                2. Ben, you have no ethics. It was clear.

                  And the prediction has been that the number of patent filings are going to drop significantly. That is something that is radical.

                  I am completely done with you. You lie and you have no ethics.

                3. It was not clear. When I asked for a precise prediction you failed to articulate the five year window. Others can be the judge of whether that supports your understanding or mine.

                4. Ben,

                  You have been an arse on this subject.

                  Take it from someone who has disagreed with Night Writer (more than once).

          2. 1.1.1.2.2

            There was a massive RIF in the Trademark Office after burst of the dot-com bubble. This is hearsay, but talking to old-timers who worked with earlier old-timers, even during the Great Depression there were no patent examiner RIFs. There was a year during that period where examiners took a 10 per cent pay cut.

            1. 1.1.1.2.2.1

              Hi, my shifting historical pseudonymed friend. Was this in relation to your former line of work? You have in the past seemingly indicated that you had been a new examiner in the 1970/1980 timeframe.

            2. 1.1.1.2.2.2

              That is the whole point of what I’ve been saying isn’t it Thomas?

              Patents have been so devalued that they we going to see a significant drop in applications for the first time in modern history.

              1. 1.1.1.2.2.2.1

                “Patents have been so devalued that they we going to see a significant drop in applications for the first time in modern history.”

                That could be, or not; the uncertainty is why they hand out Nobels for economics. My parents lived through the Great Depression and made sure I knew how to kill, clean, and cook squirrels for dinner. It’s all relative.

                1. Ben,

                  Chat up our shifting-historical-pseudonymed friend about Mr. Nobel (invite him to supply information, then throw a meltdown if he uses Wikipedia — and especially if he then provides a direct secondary source).

                  You might enjoy his attention for awhile.

        3. 1.1.1.3

          “the PTO is going to be in a cash crunch.”

          The gubmit shts out 4 trilly+. The gubmit is in a cash crunch!

          1. 1.1.1.3.1

            Come now 6, you of all people already know that the PTO is not financed by the government, but instead is entirely financed by the innovators paying into using the system.

            You are sounding as intelligent as Ben.

            1. 1.1.1.3.1.1

              “Come now 6, you of all people already know that the PTO is not financed by the government, but instead is entirely financed by the innovators paying into using the system.”

              Yes but in a crisis they may well drop them some loans, at the least.

              1. 1.1.1.3.1.1.1

                Impossible! Nothing has changed since 1952 2011, and nothing ever will!

              2. 1.1.1.3.1.1.2

                “Dropping in loans” is of course ‘possible.’

                But literally ANYTHING is possible, and such quite misses the point here.

                Of course, everything could be nationalized and we could end up in a truly socialist state.

                That does not address the current set-up.

                If you are going to go all “well, anything can happen,”’then you are in the land of counting angels on the tip of a pin.

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