Consolidated Appropriations Act of 2021

copyright COVID DMCA infringement patent trademark

On December 27, 2020, the Consolidated Appropriations Act of 2021, the annual defense spending bill, was signed into law.  Focused on COVID-19 relief and funding the federal government operations, there are also several IP-related authorizations approved in the bill itself.

First, the Copyright Alternative in Small Claims Enforcement Act of 2020 (CASE Act) creates a small claims administrative process, the Copyright Claims Board, within the Copyright Office to handle copyright infringement matters not exceeding $30,000.  Normally, such amounts would preclude a small-time copyright owner from exercising his rights to pursue a federal court action, but such litigation is often cost-prohibitive and pursued only larger, deep-pocketed corporate copyright owners, leaving that small-time copyright owner without recourse for infringement of his creative work.  The CASE Act was meant to cure this imbalance and provide an alternative smaller copyright claims process.

Second, the spending bill contains the Trademark Modernization Act of 2020, which restores the rebuttable presumption of irreparable harm supporting an injunctive relief action.  This act was necessary because of a split in the circuit courts whereby some circuits eliminated the presumption of harm in trademark cases, which was caused by the U.S. Supreme Court’s decision in eBay, Inc. v. MercExchange,[1] holding that injunctive relief is appropriate only if the plaintiff can satisfy a four-pronged factor test; this was held for patent cases only, causing a rift in the circuits as applied to trademark cases.

Further, the new trademark act also authorizes an expedited ex parte system to oppose or cancel trademark registrations through third party introduction of evidence of non-use, lack of use in commerce, or lack of use in connection with the recited goods or services.

Third, there is a provision for enhanced criminal charges for digital transmission of federally-registrations protecting streamed works, without permission, which are offered to the public for commercial gain.  This law focuses on the streaming service provider, rather than the individual end user.

Fourth, the Biologic Patent Transparency Act of 2020 was included in the spending bill.  It includes the so-called FDA’s Purple Book as a single, searchable list of all generic drugs on the market, and further requires all patents related to that generic drug, including patents claiming compositions, methods of use, and methods of manufacture.

The Consolidated Appropriations Act of 2021 was signed on December 27, 2020, making it effective as of January 4, 2021.

[1] 547 U.S. 388 (2006).