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Representatives Schweikert and DelBene Reintroduce Bipartisan Advancing America’s Interests Act to Curtail Intellectual Property Enforcement at the International Trade Commission

On September 7, 2021, Representatives Suzan DelBene (D-WA) and David Schweikert (R-AZ) reintroduced the “Advancing America’s Interests Act” (AAIA) this Congress as H.R. 5184. The AAIA would amend Section 337 of the U.S. Tariff Act of 1930, which is the enabling statute of the U.S. International Trade Commission (ITC), a quasi-judicial federal agency in Washington, D.C. with broad investigative powers on matters of trade. Among other responsibilities, the ITC conducts investigations under Section 337 concerning unfair methods of competition or unfair acts in importation, including the importation of products that infringe intellectual property rights (such as patents, trademarks, copyrights, and trade secrets). The ITC has the ability to issue exclusion orders, powerful remedies similar to injunction but that are enforced by U.S. Customs to stop infringing products at the border from importation into the United States. Central to the ITC’s Section 337 authority is the notion of protecting so-called “domestic industries” from unfair trade practices and the consideration of the “public interest” in issuing its remedial orders.

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Extension of USPTO Deadlines Under the CARES Act

Practices: Intellectual Property, Intellectual Property Litigation, Intellectual Property Transactions, Trademark, Patent Trial & Appeal Board (PTAB) Proceedings

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On March 31, 2020, the United States Patent and Trademark Office (USPTO) issued guidance permitting 30-day extensions to the time allowed to file certain patent-related documents and to pay certain required fees. These actions are an exercise of temporary authority provided to the USPTO by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which went into effect on March 27.

The guidance applies to certain filing deadlines falling between March 27, 2020 and April 30, 2020, inclusive. The 30-day extensions are available upon request to parties and practitioners affected by the COVID-19 outbreak. The guidance simply requires a statement that the party or practitioner was personally affected by the outbreak, but quite generously defines those potentially affected.

Certain PTAB deadlines may be extended, including patent owner preliminary responses (POPRs). These extensions may delay institution decisions as the PTAB has discretion to further extend institution decisions. The guidance does not provide automatic extensions of PTAB trial schedules, as parties are always free to stipulate to new dates, but specific requests might be made to extend trial schedules beyond 12 months in limited circumstances. Many patent prosecution and reexamination deadlines, including replies to office actions, are also eligible for 30-day extensions. Notably, however, application filing deadlines are not identified as eligible for extension under this guidance.

The PTO’s earlier guidance issued on March 16, 2020 (prior to passage of the CARES Act) remains in effect. That guidance waived fees for petitions to revive patent and trademark applications that had lapsed due to the COVID-19 outbreak, but without Congressional authorization, the PTO could not extend statutory deadlines. The PTO’s new guidance, authorized by the CARES Act, fills that gap.

The PTO also issued guidance permitting similar extensions for filing trademark-related documents and fees.

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