Responding to Covid-19 requires innovation, and nothing encourages innovation like a functioning patent system.

The USPTO has launched a program to quickly review Covid-19 related patents and to waive the fees usually required for prioritized review of those patent applications. 

The average time for review of a  patent application by the USPTO usually runs a bit over two years, although review times are highly variable.  An impatient patent applicant can pay for ‘priority examination,’ which costs an additional $1,000.00 for a ‘micro’ entity (individual inventors, with limitations) or $2,000.00 (generally small businesses with fewer than 500 employees).  

The USPTO has created a special program for Covid-19 inventions and the USPTO is waiving the priority examination fees.  For the right invention and the right applicant, the inventor could have a decision from the USPTO on the patent application in as little as a few months.

Limitations apply.  The invention must require FDA approval for Covid-19 use and the applicant must qualify as a ‘micro’ entity or a ‘small’ entity.  There are other requirements, but those are the principal ones.  The USPTO program is in operation now.

Others are also trying to marshal the patent system to promote Covid-19 innovation

Senator Ben Sasse (R-NE) has proposed S.3630, the ‘Facilitating Innovation to Fight Coronavirus Act,’ currently pending before the Senate Judiciary Committee.  During the current declared Covid-19 emergency, S.3630 would shield healthcare workers from liability for using medical devices or drugs off-label, from performing services outside of a health care facility, or for practicing without a license if they are acting under the direction of a person with a license.

In addition, S.3630  would change the patent term of Covid-19 related patents.  The usual term for a patent is twenty years from the date of first application.  S.3630 would effectively delay the issue date of the patent until the end of the declared health emergency, so that during the health emergency anyone can copy the patented drug or device without concern for patent infringement liability.  The patent owner is compensated by extending the life of the patent by an additional ten years.  S.3630 is currently in committee and has a long way to go before it can become law.
Here’s hoping something works.

— Robert Yarbrough, Esq.