Consolidated Appropriations Act of 2021

The huge appropriations bill includes a few IP gems: [LINK]

  • Appropriation: $3.6 billion to USPTO. All money must com from PTO fees. The Copyright Office is appropriated $93 million; ICE has $15 million for IP border enforcement; The Federal Circuit receives $33 million. (I believe this is in addition to the judicial salaries of $229k for 2020).
  • Illicit digital transmission: Big new copyright protections against streamers with felony penalties.
  • CASE Act of 2020: Small-claims copyright court.
  • Trademark Modernization Act of 2020: This change includes new mechanisms for opposing/canceling trademark registrations, including third-party submission of evidence. Allow for “expungment” of a registration application that has not been used in commerce, and 3rd party petition to cancel on non-use grounds.   PTO Director is given extra authority to unilaterally reconsider, modify, or set aside TTAB decisions. (This is a likely solution if Supreme Court finds PTAB unconstitutionally appointed).
  • Trademark Modernization Act of 2020: Presumption of injunctive relief — overcoming eBay:

‘‘A plaintiff seeking any such injunction shall be entitled to a rebuttable presumption of irreparable harm upon a finding of a violation identified in this subsection in the case of a motion for a permanent injunction or upon a finding of likelihood of success on the merits for a violation identified in this subsection in the case of a motion for a preliminary injunction or temporary restraining order.’’

  • Biologic Patent Transparency: requires the holder of a license to market a biologic drug to disclose all patents believed to be covering that drug.

 

 

6 thoughts on “Consolidated Appropriations Act of 2021

  1. 1

    Biologic Patent Transparency: requires the holder of a license to market a biologic drug to disclose all patents believed to be covering that drug.

    Two thoughts:

    1) I cannot believe that this is the first that I am hearing of this. Do you know whether this provision was reported anywhere earlier?

    2) Disclose where? Are we going to need to list in the purple book like one presently lists in the orange book?

    1. 1.1

      Yes, reportedly lots of surprises in the reportedly nearly two foot thick printout of this legislative funding & relief package.

    2. 1.3

      The version passed does not list any “or else” for failure to comply with the listing requirement. The original version proposed by Sen. Collins would have amended Section 271 of the patent act to bar an infringement action associated with a biologic that should have been listed, but wasn’t.

      1. 1.3.1

        Thanks, Prof. C. The text passed is a very watered down version of Sen. Collins’ original bill. The requirements that are being laid on us in this new law are much less onerous than the sort of “disclosure” that I was expecting when first I read this post earlier this morning. I am grateful to you for bringing this to my attention.

    3. 1.4

      Do you know whether this provision was reported anywhere earlier?

      Now that I go looking for it, I see that IP Watchdog reported this on 23 Dec. It is, in other words, my fault that I was surprised to read about it for the first time this morning. Still and all, I am surprised that the good folks over at PatentDocs had not already brought this to my attention before now.

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