Unauthorized streaming, FDA patent disclosure among new US IP law changes
Along with a $900-billion COVID-19 relief package and the $1.4 trillion government funding for pandemic aid, the FY 2021 Omnibus Appropriations Bill, signed December 27, 2020, also includes two acts and two amendments relevant to intellectual property (IP) law.
The ‘‘Copyright Alternative in Small-Claims Enforcement Act of 2020’’ or the ‘‘CASE Act of 2020” establishes a type of copyright small-claims court that can deal with disputes with damages valued equal to or less than USD15,000 per claim or USD30,000 in total. The Copyright Claims Board may adjudicate cases involving copyright infringement, counterclaims, or misrepresented takedown notices as long as the amount of the claims are capped at the established amount. However, participation in the proceedings is deemed voluntary, and rights to seek legal action in US district courts or to seek a jury trial remain.
While the CASE Act can be beneficial for copyright owners through the provision of an alternative forum in addressing copyright concerns, its effectiveness may be questioned due to the availability of an opt-out option, and its susceptibility to being abused by copyright trolls who may seek to aggressively profit from the new act.
Trademark Modernization Act
The ‘‘Trademark Modernization Act of 2020’’ or the ‘‘TM Act of 2020’’ is an update to the Trademark Act of 1946, and will be effective one year after its enactment. The TM Act of 2020 creates a process for third parties to challenge trademark applications and trademarks that have already been issued. Petitions for cancellation or expungement may be applied against a mark.
The law also provides authority to the director of the US Patent and Trademark Office to reconsider or modify decisions from the Trademark Trial and Appeals Board. Moreover, the TM Act of 2020 has provisions on the entitlement of plaintiffs to a “rebuttable presumption of irreparable harm” upon a finding of a violation such as a motion for permanent injunction or upon a finding of a likelihood of success on the merits of a violation identified such as a motion for a preliminary injunction or a temporary restraining order.
In addition to these two acts, the bill also includes sections highlighting amendments to relevant laws related to copyright, particularly on streaming, and patent transparency. These include the following:
Amendment concerning Unauthorized Streaming
The amendment to Chapter 113 of title 18, United States Code introduces criminal penalties for unauthorized streaming of copyrighted or trademarked content. Under the law, the “illicit transmission of digital services” is deemed to be a prohibited act that may lead to a fine and/or imprisonment of up to 10 years of imprisonment for violators, depending on the severity of their violation.
Biological Product Patent Transparency
The recently signed bill also introduces amendments to the Public Health Service Act. It requires the Food and Drug Administration to make patent information related to biological products publicly available and searchable in an electronic format. The reference product sponsor is also expected to submit patent information and their corresponding expiry dates. A public comment regarding the amendment is expected to be conducted three years after the Omnibus Appropriations Bill’s enactment and will be submitted to Congress.
As these changes to US legislation have only been recently signed, the extent of their impact on IP law cases is yet to be determined.