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PTO Re-Opens to Public

The US Patent & Trademark Office (PTO) re-opened to the public on May 25, 2022. Both the headquarters in Alexandria, Virginia, and the regional offices in Dallas, Texas; Denver, Colorado; Detroit, Michigan and San Jose, California, are now open. The offices had been closed to the public since March 16, 2020, because of the COVID-19 pandemic.

Visitors will be required to complete a health questionnaire and may be denied entry depending on the results of the questionnaire. Local COVID-19 infection rates will determine whether masks are required in each office.

Although the PTO is open to the public, oral hearings before the Patent Trial & Appeal Board and Trademark Trial & Appeal Board will still be conducted by video or telephone. In-person interviews with examiners are now possible, however.




Lawyers Scolded but Not Sanctioned for Violating Federal Circuit’s COVID-19 Rules

The US Court of Appeals for the Federal Circuit decided not to impose sanctions for violation of its COVID-19 restrictions on the number of counsel permitted to attend oral argument, citing the involved lawyers’ “earnest remorse.” In re Violation of the Revised Protocols for In-Person Arguments and Related Order, Case No. 22-9000 (Fed. Cir. Feb. 25, 2022) (per curiam).

When the Federal Circuit reopened for in-person oral arguments in September 2021, it continued to restrict public access to the National Courts Building and set out strict protocols governing appearances at oral argument. Under those protocols, only arguing counsel and up to one additional attendee whose presence was necessary to assist or supervise the arguing counsel could attend. All persons entering the building had to sign a form certifying that they were either arguing counsel or assisting or supervising arguing counsel. Arguing counsel had to sign an additional form taking personal responsibility for ensuring that all individuals attending argument with the arguing counsel had read and would comply with the COVID-19 protocols.

Several senior lawyers from one law firm wanted to attend a junior colleague’s oral argument. The junior lawyer moved for permission for two lawyers and two other individuals to attend the oral argument in addition to arguing counsel and the one permitted assistant/supervisor. The Federal Circuit denied the motion. Nonetheless, on the day of argument, four lawyers (each carrying the required form) went to the courthouse and entered the assigned courtroom. The two non-arguing, non-assisting/supervising lawyers sat in the back corner of the courtroom until they were summoned to the front by a deputy clerk and told to leave the courtroom. The lawyers returned to the lobby area and were subsequently escorted out of the building.

The matter was referred to the Federal Circuit’s standing panel on attorney discipline, which ordered all four lawyers to show cause why they should not be sanctioned. The lawyers stated that they had gone to the courthouse notwithstanding the denial of their motion for leave to attend the hearing merely to seek clarification on any potential changed circumstances that might permit their attendance. They also argued that the Court’s COVID-19 restrictions were ambiguous. Finally, they expressed remorse for having violated the rules.

The Federal Circuit criticized the lawyers for trying to attend the oral argument even though their motion for leave to attend was denied. The Court noted that the lawyers might have sought clarification or reconsideration of the denial in writing but stated that it was inappropriate for the lawyers to have sought such clarification or reconsideration in person at the time of the hearing. The Court also called the lawyers’ argument that the protocols were ambiguous “wholly without merit.” Nonetheless, on a finding that the lawyers’ remorse was earnest, the Court decided not to impose sanctions.

Practice Note: Anyone might make an occasional error in judgment. While remorse does not undo such an error, it can at least help prevent sanctions from being imposed. Then again, the Federal Circuit has now [...]

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Announcement: USPTO COVID-19 Prioritized Examination Program

The United States Patent and Trademark Office (USPTO) has announced a new prioritized examination program to expedite the examination of applications for marks used to identify qualifying COVID-19 medical products and services. Applications that qualify for the program will immediately be assigned to an examining attorney for review, which expedites examination by approximately two months. The USPTO will not charge additional fees for applications that qualify for the program because it considers the COVID-19 outbreak to be an “extraordinary situation” for trademark applicants.

To qualify for prioritized examination, the trademark or service mark application must cover a product that is subject to the United States Food and Drug Administration (FDA) approval for use in the prevention and/or treatment of COVID-19, or a medical service (including medical research) for the prevention and/or treatment of COVID-19.

The USPTO started accepting petitions to advance the initial examination of applications for qualifying COVID-19-related marks beginning June 16, 2020.

Read the full announcement here.




CBD Products in the Time of COVID-19: Best Practices for Making Your (Trade)mark

In the midst of an unprecedented and unsettling global pandemic, one constant remains: certain entrepreneurial-minded folks will not miss the opportunity to file trademark applications for new “brands” that align with the latest news cycle. COVID-19 is no different. The United States Patent and Trademark Office (USPTO) has experienced a swell of new US trademark applications for COVID-related trademarks, with many of the marks using descriptive terms or phrases that have become commonplace in a shelter-in-place, #wfh and social distancing world.

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US Copyright Office, USPTO Act to Assist Those Affected by COVID-19

On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which authorized the US Copyright Office (USCO) and the United States Patent and Trademark Office (USPTO) to temporarily waive or modify certain statutory deadlines. Prior to the CARES Act, the USPTO and USCO had sought to provide relief to intellectual property owners by waiving certain fees (including, for example, fees associated with petitions to revive abandoned applications), but had been limited by their inability to modify statutory deadlines.

The extensions will undoubtedly provide needed relief for certain rights holders during this tumultuous time. Nonetheless, if possible, adhering to original deadlines is the safest route, and parties should first carefully review the USPTO and USCO notices with a lawyer to determine whether the extensions are applicable and legally prudent.

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