Key Developments that Shaped the USPTO in 2021

“Adjusting to the new normal” is a phrase that can be used to describe the United States’ and the world’s response to the events of 2021. Almost two years into the pandemic, it is clear that COVID-19 will be around for the near future, and we all have to adjust to it. The U.S. Patent and Trademark Office (USPTO) certainly has adjusted, and business as usual is in full effect.

Here’s a recap of some of the most significant developments at the USPTO in 2021.

Change in Leadership at the USPTO

Customary with change in administrations, Kathi Vidal has been nominated to replace former USPTO Director Andrei Iancu as USPTO Director.  As of this writing, Vidal’s nomination had not been voted on by the Senate. But assuming her appointment is confirmed, Vidal will be in a position to shape the role of future USPTO Directors. The U.S. Supreme Court’s United States v. Arthrex, Inc. decision earlier this year gave the Director of the USPTO added significance. Accordingly, the Director now has the authority to review all final PTAB decisions and issue decisions on behalf of the Patent Trial and Appeal Board (PTAB or Board). The USPTO has implemented an interim procedure for Director review, consistent with the Arthex decision.

During Vidal’s confirmation hearing, she agreed that patent eligibility is an area deserving of attention and additional clarity because the law is not set. If confirmed, look for how Vidal continues to mold Director review processes of final PTAB decisions and hints of the future surrounding patent eligibility.

Response to COVID-19

The USPTO continues to launch incentives for inventors and companies that develop technologies related to COVID-19. A new award category for the USPTO’s Patents for Humanity Program will be launched for inventions that support groundbreaking solutions to overcome the pandemic. Winners of the award receive a certificate to accelerate USPTO processing for one eligible matter and can leverage the certificate to obtain funds to help transform their inventions.

As a companion to the COVID-19 Prioritized Examination Pilot Program implemented in 2020, the USPTO has implemented the Fast-Track Pilot Program for Appeals Related to COVID-19 for appellants with certain COVID-19-related ex parte appeals before the board. As of this writing, zero petitions have been received.  Requests for the COVID-19 Prioritized Examination Pilot Program, however, must be filed by midnight, December 31, 2021, to avoid payment of certain fees associated with prioritized examination.

And as a companion to the COVID-19 Prioritized Trademark Examination Program implemented in 2020, the USPTO is initiating Pilot Prioritized Review Program for Appeals Related to COVID-19, in which the Trademark Trial and Appeal Board (TTAB) will expedite the review and issuance of ex parte appeal decisions for applications examined under the COVID-19 Prioritized Trademark Examination Program. Look for the launch of the COVID-19 Prioritized Trademark Examination Program in 2022.

USPTO Revises Patent Bar Qualifications

The USPTO has revised the patent bar qualifications by expanding the list of technical and scientific qualifications that may typically make applicants eligible to take the patent bar exam.  Three categories of changes to the “technical and scientific qualification” for patent bar eligibility include:

1. Expanding Category A degrees to expressly include the following degrees that are routinely accepted under Category B: Aerospace engineering, bioengineering, biological science, biophysics, electronics engineering, genetic engineering, genetics, marine engineering, materials engineering, materials science, neuroscience, ocean engineering, and textile engineering.
2. Expanding Category A to include post-baccalaureate degrees such as a master’s or a doctor of philosophy degree in a Category A subject.
3. Revising Category B to eight semester hours in chemistry, biology, and/or biology with a lab.

These changes are reflected in the latest General Requirement Bulletin for Admission to the Examination for Registration to Practice in Patent Cases before the United States Patent and Trademark Office.

Implementation of the Trademark Modernization Act

On December 18, 2021, the USPTO Implemented the Trademark Modernization Act. The touted program promises to provide a faster, more efficient, process to move trademark applications through the registration process. Additionally, two new procedures related to expungement proceedings and reexamination proceedings at the Trademark Trial and Appeal Board (TTAB) are implemented. However, implementation of the shorter response period for office actions will have to wait until December 1, 2022. Look for additional information on the implementation of the shorter response period sometime in 2022.

Patent and Trademark Filings and Trends for 2021

FY 2021 saw minimal changes in the number of patent filings, including Patent Utility, Plant, Reissue, Designs, and RCEs from FY 2020. In fact, patent filings decreased 0.4% from FY 2020. There were 650,703 patent filings in FY 2021 compared to 653,311in FY 2020. Despite minimal changes in patent filings, the average patent first action pendency increased to 16.9 months for FY 2021. In FY 2020, the average patent first action pendency was 14.8 months. FY 2021 saw a 14.2% increase in the pendency period. However, the average total patent pendency remained flat at 23.3 months.

Unlike patent filings, FY 2021 saw a substantial increase, 27.9% in trademark filings from FY 2020. In FY 2021, 943,928 trademarks were filed compared to 738,112 trademarks filed in FY 2020. As expected, the average trademark first action pendency increased 110% from 3.0 months in FY 2020 to 6.3 months in FY 2021. With the implementation of the Trademark Modernization Act, look for trends in the average first action pendency.

11 Million Milestone

The USPTO issued patent number 11 million in May 2021. Patent number 11 million comes three years after the issuance of patent number 10 million in 2018. Based on recent trends, patent number 12 million is at least on pace to issue in 2024.

2021 appears to have set a foundation for a busy 2022 and beyond with lots of new changes ahead. Cheers to a productive year in 2022.