TEMPORARY AUTHORITY OF DIRECTOR OF THE USPTO DURING THE COVID-19 EMERGENCY
Sec. 12004. (a) In General.—During the emergency period described in subsection (e), the Director may toll, waive, adjust, or modify, any timing deadline established by title 35, United States Code, the Trademark Act, section 18 of the Leahy-Smith America Invents Act (35 U.S.C. 321 note), or regulations promulgated thereunder, in effect during such period, if the Director determines that the emergency related to such period—
(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.
The emergency period includes the duration of the national emergency declared by President Trump plus 60 days.
This authorization comes amid several USPTO initiatives to provide relief for customers affected by the COVID-19 crisis pursuant to its authority under 37 CFR 1.183. Considering the crisis an “extraordinary situation,” it has waived certain petition fees and the original handwritten signature requirements of 37 CFR 1.4(e)(1) and (2). USPTO offices closed to the public on March 16, with all in-person meetings to be conducted remotely by video or telephone.
The Act grants similar authority to the Register of Copyrights:
NATIONAL EMERGENCY RELIEF AUTHORITY FOR THE REGISTER OF COPYRIGHTS
Sec. 19011. (a) Amendment.—Chapter 7 of title 17, United States Code, is amended by adding at the end the following:
“§ 710. Emergency relief authority
“(a) Emergency Action.—If, on or before December 31, 2021, the Register of Copyrights determines that a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) generally disrupts or suspends the ordinary functioning of the copyright system under this title, or any component thereof, including on a regional basis, the Register may, on a temporary basis, toll, waive, adjust, or modify any timing provision (including any deadline or effective period, except as provided in subsection (c)) or procedural provision contained in this title or chapters II or III of title 37, Code of Federal Regulations, for no longer than the Register reasonably determines to be appropriate to mitigate the impact of the disruption caused by the national emergency. In taking such action, the Register shall consider the scope and severity of the particular national emergency, and its specific effect with respect to the particular provision, and shall tailor any remedy accordingly.
Generally, the Register’s authority does not extend to provisions requiring the commencement of an action or proceeding in federal court within a specified period of time or to the duration of copyrights under 17 U.S.C. Chapter 3.
The USPTO and Copyright Office have not yet officially waived or amended any deadlines yet, but this legislation gives them the authority to do so. We are monitoring the USPTO and the Copyright Office’s responses to the crisis and will provide updates if changes occur. For more information about the federal government’s response to the COVID-19 crisis, please see the public notices from the USPTO or the Copyright Office or contact your Fish attorney.
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.