Under the CARES Act, the US Patent and Trademark Office has the (temporary) authority to “manage” … postpone … certain statutory deadlines in patent matters.
The CARES Act, H.R. 748 116th Cong. (2020), gives the USPTO the authority during the emergency period to “toll, waive, adjust, or modify any timing deadline established” in the Patent Act or Trademark Act, including any regulations implementing these timing deadlines.” The Act is in effect from 27 March 2020 (the date the legislation was enacted) until 60 days after the state of national emergency is resolved.
There are only certain criteria under which the USPTO can waive statutory deadlines.
- The timing deadline materially affects the functioning of the USPTO.
- The timing deadline prejudices the rights of applicants, registrants, patent owners or others appearing before the office.
- The timing deadline prevents applicants, registrants, patent owners or others appearing before the office from filing a document or fee with the office.
Once the director determines such a waiver is appropriate, the USPTO has to publish a notice to implement the waiver.
Within 20 days of issuing the notice, the CARES Act also requires the USPTO to report to Congress for any waiver that adjusts due dates for more than 120 days. Furthermore, the USPTO’s authority to alter these due dates during the emergency period expires two years after the date of enactment.
Until the USPTO issues such a notice, patent and trademark applicants and owners must still comply with the timing deadlines.