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.