This month's article is contributed by Lea Polito, a 1L at UNH Franklin Pierce School of Law.
It is difficult to envision a field that has remained unscathed by the COVID-19 pandemic, and patent prosecution is no exception. In response, the USPTO has provided assistance to the inventors and entities hit hardest by the pandemic. The USPTO extended CARES act relief for small and micro entities by providing extensions for the payment of filing fees, issue fees, maintenance fees, and others that were originally due at the end of March until the end of September. The USPTO also granted extensions of time to restore the priority date of filings delayed due to COVID-19 through the end of July, a critical step in securing inventors’ rights facing unforeseen economic hardships. Also, the PTAB has been flexible in granting extensions of time during proceedings on a case-by-case basis. For example, in Unified Patents v. Qwikcash, an ongoing inter partes review, the PTAB granted a thirty-day extension of time for Qwikcash’s preliminary response. No. IPR2020-00972, 2020 WL 5498941 (P.T.A.B. Sept. 11, 2020). Qwikcash is a small entity managed solely by a seventy-nine-year-old inventor who was unable to file a timely response because he contracted COVID-19 and was still recovering. Many incentives and issues exist in patenting COVID-19 technologies. The USPTO recently announced a deferred fee provisional patent application for small and micro entities for inventions that combat COVID-19. This is contingent on the applicant’s agreement to publish the subject matter disclosed in the application on the USPTO’s website in an effort to promote and circulate the information to the public-encouraging innovation while protecting patent rights. For larger entities working toward a COVID-19 vaccine, there is a complex balance between granting access to patented COVID-19-related technologies to allow for collaboration in vaccine development while also providing incentives for companies to continue to develop and patent new technologies. Additionally, allowing companies to retain their patent rights encourages profit-motivated innovation. However, licensing issues can create barriers in granting public access to vaccines and treatments, which is particularly problematic for low-income countries. With the recent news of the potential effectiveness of Pfizer’s vaccine, it will be interesting to see how the access versus incentives dilemma is resolved. With the majority of Americans working remotely, there has been an influx of patent applications for work-from-home (WFH) technologies. A recent UChicago study sought to quantify the increase in WFH patent applications. The researchers examined the XML files of patent applications for key terms defined in a word bank in order to extract the number of WFH patent applications from a data set of about 3.5 million filings over the past ten years. Notably, the study suggests that from January to May 2020, the share of patent applications in the data set pertaining to WFH technologies had almost doubled, from about 0.53% to about 1.03%. This increase is likely a reflection of the increased demand on large suppliers of these technologies as well as working-class inventors creating their own solutions to the everyday inconveniences faced in their home offices. COVID-19 has stalled the number of utility patents granted to an extent, but as of July, 2020 is still likely to fall in the top five years with the highest number of utility patents issued. In looking at the long-term impact of the COVID-19 economic recession on patent prosecution, comparisons to the Dotcom Bubble recession from 2000-2002 and the Subprime Mortgage Crisis from 2007-2009 may be useful. Under stable economic conditions, there is an average yearly increase in the number of patent applications filed by about 18,000 each year. This increase still occurred in the first year of both recessions but then became static. From the beginning to the end of both recessions, there was a 7-8% total decrease in the number of applications filed, and it took about five years after both recessions for this number to rebound. The number of abandonments per year sharply increased in both recessions and peaked at a 21.8% increase in 2002 and a 30.7% increase in 2009. If the COVID-19 recession follows the trends from these recent recessions, there probably will not be an apparent impact on the number of applications and abandonments for at least another year or two. The government aid provided in the CARES act and the USPTO’s flexibility may help mitigate the adverse effects that the COVID-19 recession will have on patent prosecution. However, given the uncertain duration of the pandemic, it is unclear as to whether the COVID-19 recession will follow any sort of trend at all.
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My name is Tyler Baylis and I am currently in my second full month of 1L year at UNH Franklin Pierce School of Law. I intend to specialize in patent law. I took a year off between graduating with a biology major from Umass Amherst in 2019 and starting law school to do construction. I decided to study patent law because it allows me to retain and utilize my undergrad degree while not having to spend my life working in a lab. The field of law is more flexible and allows me to be creative to achieve the results I need. While I did take a couple of law classes in undergrad, I really had no law experience going into law school. Coming into my 1L year, I had a precognitive expectation of what law school entails.
With a heavy focus on biology throughout my academic life, I had done a fair share of scientific reading in my time. I was sure that if I could understand complicated topics like the necessary maintenance of harmful recessive mutations in a gene pool (such as sickle cell anemia) from reading, I would be able to understand legal reading. Unfortunately for me, scientific reading, even at the highest level, was not enough to prepare me for law school reading. Scientific reading is relatively easy for me; you can get away with reading the topic sentences, the bolded texts, and the diagrams provided to distill the topic’s underlying theme. Legal reading, however, is different. In most classes, we read cases which deal with the legal principle the professor wishes to discuss. Not only do you need to understand the facts of the case, but you need to ascertain the key points relevant to the legal principle being discussed. As opposed to scientific reading in which you can decipher at a rather quick glance, legal reading is far more intensive, and each page demands a high level of attentiveness. Needless to say, my expectation that law school was a lot of work appears to be accurate. Additionally, I expected law school to take the same approach as the course load of my undergrad did; for example, I would start out taking the equivalent of general education to get my legal footing. I then would start to focus on patents by my second year. To my surprise, however, I was able to learn a bit about patents as soon as the start of the semester. We have a class that teaches legal research, and how to navigate the legal research databases, both tailored to IP. Patent students learn to research through patent related topics, trademark, and soft IP students learn via researching trademarks and etc. This not only gave me a basic introduction to the patent world, which I did not expect to get, but it also introduced me to my fellow patent law students, who I will spend the next few years learning with and potentially working with after. I am far from an IP expert after only two months of my patent tailored research class, but I am more experienced and exposed to the fundamental patent law concepts and terms than I thought I would be after only a few months into law school. A discussion of my first few months of law school in 2020 would be incomplete without discussing the viral elephant in the room. I initially toured and applied to UNH Law in 2019, so my expectations about the day-to-day law school life were a little different from the reality of school in a pandemic-ridden world. I was excited to be on campus, meet new people, and get engaged in the patent community via luncheons, guest speakers, and other patent related events. However, Covid-19 has checked those expectations. One of the big draws to UNH Law for me was the IP program. When combined with the small class size and diverse, talented IP groups, our nationally ranked IP program seems like the perfect way for any prospective IP student to both network for the future and gain the necessary skills to do the work in the present. While the classes teaching us IP topics has not changed, our access to peers has. Unfortunately, it’s harder to get to know a square on a Zoom call than it is a person sitting next to you in class. Except for my fellow patent students in my research class, it took me a long time to view the other “boxes” on Zoom as my classmates. Even now, there are some students whom I do not share any classes with, and likely would not even recognize their name since we have fewer opportunities to meet. That makes things like student organizations, for example, the PLF for patent students and SIPLA for general IP students, essential as they not only introduce you to people, but they introduce you to the right people who share the same interests as you. |
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