Lewis Roca Blog

Businesses small and large have been impacted in myriad ways by the COVID-19 crisis but some businesses have responded by reinventing themselves by making products or providing services to meet the new demands of COVID-19. For example, a 260-seat restaurant and micro-distillery in Portland, Oregon began making and selling hand sanitizer as its restaurant business slowed and a tent manufacturer in Millcreek, Utah began using its manufacturing facilities to produce personal protective equipment for healthcare workers. Crises can lead to new opportunities and many businesses are utilizing their existing machinery, facilities, skills, distribution channels, supply channels, trade secrets and other intangible assets to find new business opportunities.

For companies that provide COVID-19 medical goods and services, the United States Patent & Trademark Office (USPTO) has started prioritizing the examination of trademark applications covering goods and services to prevent, diagnose, treat or cure COVID-19. To qualify for this prioritized examination program, a new application must cover one or more of the following goods or services:

• Pharmaceutical products or medical devices such as diagnostic tests, ventilators and personal protective equipment, including surgical masks, face shields, gowns and gloves, that are intended to prevent, diagnose, treat or cure COVID-19 and are subject to approval by the U.S. Food and Drug Administration (FDA); and
• Medical services or medical research services for the prevention, diagnosis, treatment of or cure for COVID-19.

The FDA approvals referred to above may include, but are not limited to, applications for an Investigational New Drug (IND), Investigational Device Exemption (IDE), New Drug Application (NDA), Biologics License Application (BLA), Premarket Approval (PMA) or Emergency Use Authorization (EUA). The application may also include additional products and services beyond the COVID-19 ones listed above, if they are related to COVID-19 products and services.

To take advantage of this program an applicant must first file a new application covering qualifying goods and/or services, then file a petition to the Director requesting prioritized examination. The petition must include a statement of facts explaining why the application qualifies for prioritized examination along with an affidavit or declaration. The USPTO will waive the petition filing fee as an added incentive. If the petition is granted, the application will immediately be assigned to an examining attorney for review, which will expedite examination by approximately two months. Expedited applications are still subject to the same review guidelines and publication protocol that provides a minimum 30-day opposition window.

Businesses must continue to protect their valuable intellectual property as their scope of goods and/or services expands or changes, even if only temporarily. If you or your business have developed a product or service that is related to the prevention, diagnosis or treatment of COVID-19 in any way, the trademark lawyers at Lewis Roca Rothgerber Christie will be happy to assist you with the application process for trademark registration and expedited examination for any qualifying goods and/or services.

Please contact David Jackson at DJackson@lewisroca.com, Jennifer Van Kirk at JVanKirk@lewisroca.com, or your Lewis Roca Rothgerber Christie attorney for assistance at any time.

This material has been prepared by Lewis Roca Rothgerber Christie LLP for informational purposes only and is not legal advice. Specific issues dealing with COVID-19 are fluid and this alert is intended to provide information as it is currently available. Readers should not act upon any information without seeking professional legal advice. Any communication you may have with a Lewis Roca Rothgerber Christie LLP attorney, through this announcement or otherwise, should not be understood by you to be attorney-client communication unless and until you and the firm agree to enter into an attorney-client relationship