How is the Coronavirus Pandemic Impacting the U.S. Patent System

By: Elissa Tenenbaum

 

As of April 22, 2020, there are approximately 828,441 confirmed COVID-19 (“Coronavirus”) cases in the United States. [1] The Coronavirus pandemic has caused illness, death, and financial hardship. The U.S. government is providing emergency financial help if an individual has been affected by Coronavirus. [2] The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), passed on March 27 [3] , is an over $2 trillion economic relief package that has the goal of protecting Americans from the public health and economic effects of the Coronavirus. [4] However, as this pandemic continues, more areas of life will be troubled, including the patent system.

 

A key goal of patent law is to promote innovation. The Progress Clause of the Constitution gives Congress the power “[t]o Promote the Progress of Science and the useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries.” [5] Innovation allows for new, improved technology and helps make life easier. Impeding innovation would negatively impact the world.

 

The USPTO’s Response

The USPTO extended deadlines by 30 days to pay specific fees and file certain patent and trademark documents. [6] The CARES Act provided this authority and encompassed: relief for patent applications and reexamination proceedings; additional relief before the Patent Trial and Appeal Board; and relief for trademark applicants, registrants, and parties to the Trademark Trial and Appeal Board proceedings. [7] However, for the extension to apply, the initial deadline date must fall between March 27, 2020 and April 30, 2020, and the filing must include a statement that the delay was due to the Coronavirus. [8]

 

Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, emphasized that “[i]nventors and entrepreneurs are the lifeblood of our economy, and we recognize that many of them are having difficulty as a result of the effects of COVID-19.” [9]

 

The goal is to cushion the financial instability of the current economy. Yet, if this continues, will the USPTO extend these deadlines further and extend the initial deadline date requirement? If they do not, this can hinder and disincentivize patent proceedings.

 

Decrease Non-Medical Related Patent Filings

There will likely be a decrease in non-medical related patent filings because of social distancing, quarantining, and financial hardship. “The China National Intellectual Property Administration (CNIPA) has released patent statistics for combined January and February 2020 showing a 9% decline in invention patent application filings compared to the first two months of 2019.” [10] Although no reasons were provided for this decrease, it is suspected that the decrease was due to the Coronavirus. [11] Since the U.S. seems to be following the same path as China just a few months behind, similar statistics for the patent system will likely result.

 

When internet access is not accessible or free, like in rural areas, education is inhibited. [12] If people cannot afford to spend money on food to feed their families, [13] they cannot afford to spend money improving technology or pay USPTO fees. If people have to social distance, quarantine, and self-isolate, [14] people are less likely to have meetings discussing new inventions or to file a new patent. With these consequences, it is logical to assume that non-medical patent filings will decrease, and people are less likely to pursue patents.

 

Increase Medical Related Patent Filings

Although there are already many patents for medical treatments, new patent filings to treat the Coronavirus are expected to increase. “[T]here is already a large body of scientific literature addressing many of the underlying compounds, and many are covered by existing patents and patent applications.” [15] SARS and MERS drug treatments are being researched to see if they are effective for the Coronavirus. [16] “The patent analysis of coronavirus-related biologics includes therapeutic antibodies, cytokines, and nucleic acid-based therapies targeting virus gene expression as well as various types of vaccines.” [17] At least “500 patents disclose methodologies of these four biologics with the potential for treating and preventing coronavirus infections, which may be applicable to COVID-19.” [18]

 

The research exemption in the U.S. allows for certain research activities to be exempt from patent infringement. [19] This exemption does not include acts “solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry.” [20] Although “few, if any, research activities conducted at universities or companies today would likely qualify for this exemption from patent infringement,” [21] the research exemption can be helpful for Coronavirus treatments. The decreased threat of patent infringement suits could alleviate potential Coronavirus treatment obstacles.

 

Conclusion

The U.S. government and its agencies are attempting to mitigate the negative consequences of the Coronavirus. Financial government support may slightly help individuals and the economy. Nonetheless, while innovation will likely increase for medical related inventions, it is likely that non-medical related patent filings and proceedings will dramatically decrease.

 

[1] James Bessen & Michael J. Meurer, Coronavirus Disease 2019 Cases in the US in Centers for Disease Control and Prevention (Apr. 22, 2020) https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

[2] David Kline, Disaster Financial Assistance, USAGov, https://www.usa.gov/disaster-financial-help (last visited Apr. 23, 2020).

[3] Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, H.R. 748, 116th Cong. (2020).

[4] The CARES Act Works for All Americans, U.S. Department of the Treasury, https://home.treasury.gov/policy-issues/cares (last visited Apr. 23, 2020).

[5] U.S. Const. art. I, §8, cl. 8.

[6] USPTO Announces Extensions Available for Some Patent and Trademark Deadlines if Due to COVID-19 Issues, Fish & Richardson (Apr. 2, 2020), https://fishpostgrant.com/alert/uspto-announces-extensions-available-for-some-patent-and-trademark-deadlines-if-due-to-covid-19-issues/; see also USPTO announces extension of certain patent and trademark-related timing deadlines under the Coronavirus Aid, Relief, and Economic Security Act, USPTO (Mar. 31, 2020), https://www.uspto.gov/about-us/news-updates/uspto-announces-extension-certain-patent-and-trademark-related-timing.

[7] Id.

[8]Fish & Richardson, supra note 1.

[9] USPTO, supra note 1.

[10] Aaron Wininger, Chinese Patent Office Releases Patent Statistics for First Two Months of Coronavirus Epidemic, Nat’l Law Rev. (Mar. 14, 2020), https://www.natlawreview.com/article/chinese-patent-office-releases-patent-statistics-first-two-months-coronavirus.

[11] Id.

[12] Erin Mansfield et al., Coronavirus for kids without internet: Quarantined worksheets, learning in parking lots, USA Today (Apr. 1, 2020), https://www.usatoday.com/story/news/education/2020/04/01/coronavirus-internet-speed-broadband-online-learning-school-closures/5091051002/.

[13] See, e.g., Abha Bhattarai, ‘If coronavirus doesn’t get us, starvation will’: A growing number of Americans say they can’t afford to stock up on groceries, The Wash. Post (Mar. 20, 2020), https://www.washingtonpost.com/business/2020/03/20/if-coronavirus-doesnt-get-us-starvation-will-growing-number-americans-say-they-cant-afford-stock-up-groceries/.

[14] See, e.g., Social Distancing, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

[15] Jorge Contreras, Patents and Coronavirus – The Research Exemption in the U.S., The Univ. of Utah S.J. Quinney College of Law (Mar. 24, 2020), https://law.utah.edu/patents-and-coronavirus-the-research-exemption-in-the-u-s/.

[16] Id.

[17] See Cynthia Liu et al., Research and Development on Therapeutic Agents and Vaccines for COVID-19 and Related Human Coronavirus Diseases, 6 ACS Cent. Sci. 315, 315 (2020).

[18] Id.

[19] 28 U.S.C.A. § 1498.

[20] Madey v. Duke U., 307 F.3d 1351, 1362 (Fed. Cir. 2002).

[21] See Contreras, supra note 14.