The U.S. Patent and Trademark Office (USPTO) has adapted to the COVID-19 era. Yet, performance challenges in certain operational areas remain. This is the conclusion of the USPTO FY 2020 Annual Report. Our previous article on TTAB statistics in the age of COVID-19 may be found here.
TTAB FY 2020 performance. The TTAB is responsible for the adjudication of trademark opposition, trademark cancellation, and ex parte appeals. The USPTO fiscal year commences on October 1 and ends on September 30 of the following calendar year.
Fiscal year (FY) 2020 had its pre-COVID operational challenges from day one. These included:
- a backlog of cases from FY 2019;
- an increase in TTAB filings by trademark owners;
- a steep escalation in motion practice;
- a significant increase in cases ready for decision (RFD); and
- the ratio of RFD trial cases to Trademark Appeals was heavily titled towards trial cases
In 2020, the Board continued to address its backlog of cases, hiring more attorneys and judges to its staff. In total, brought on more than 40 combined attorneys and judges. This is the highest level ever. As a result, by third-quarter, decisions on the merits and motions were all processed within goals. Total annual goals, however, were not met.
Strategic Initiatives. FY 2020 also had certain strategic goals realized. For example, the Trademark Board completed a two-year pilot program to encourage early resolution of trademark cancellation cases. This early resolution model is for trademark cancellation cases involving abandonment or non-use claims. The TTAB also commenced an analysis of Accelerated Case Resolution (“ACR”) cases to determine its effectiveness to date over a several year period. This is for the purpose of encouraging litigants to utilize ACR, which in theory could be less expensive and lengthy than traditional proceedings. Whether ACR is preferred for cancellation and opposition proceedings is the subject of future articles.
The Board also began outlining a new pilot project, expected to begin in FY 2021. This project will focus on having pre-trial conferences with parties in selected cases. Other TTAB enhancements include a new digital Reading Room where users can search TTAB opinions.
Conclusion. The U.S. Trademark Trial and Appeal Board has made significant progress over the past year. It has adapted well to having its employees work virtually due to COVID-19. The transition of more TTAB employees to a virtual work environment will likely continue even after the pandemic. What will remain, however, are certain case management inefficiencies that result from Board practices that have remained unchanged over the years.