CARES Act Grants Emergency Powers to USPTO Director and Register of Copyrights

The US Senate on March 25, 2020, passed by unanimous consent the Coronavirus Aid, Relief, and Economic Security (CARES) Act which grants, among other things, “emergency relief authority” for a limited amount of time to the USPTO Director and the Register of Copyrights. CARES Act of 2020, S.3548, 116^th Cong.

Specifically, the bill grants the USPTO Director the ability to temporarily “toll, waive, adjust, or modify, any timing deadline” established by the patent or trademark laws or by prior PTO regulation in order to mitigate the impact of disruption to regular business caused by the COVID-19 pandemic.

Similarly, the bill grants the Register of Copyrights the ability to temporarily “toll, waive, adjust, or modify any timing provision” under copyright law, barring certain exceptions. Find more details below.

TEMPORARY AUTHORITY OF DIRECTOR OF THE USPTO DURING THE COVID–19 EMERGENCY.

SEC. 12004. S2128 of March 25, 2020 Congressional Record.

(a) IN GENERAL.—During the emergency period described in subsection (e), the Director may toll, waive, adjust, or modify, any timing deadline established by title 35, United States Code, the Trademark Act, 19 section 18 of the Leahy-Smith America Invents Act (35 U.S.C. 321 note), or regulations promulgated thereunder, in effect during such period, if the Director determines that the emergency related to such period—

(1) materially affects the functioning of the Patent and Trademark Office;

(2) prejudices the rights of applicants, registrants, patent owners, or others appearing before the Office; or

(3) prevents applicants, registrants, patent owners, or others appearing before the Office from filing a document or fee with the Office.

(b) PUBLIC NOTICE.—If the Director determines that tolling, waiving, adjusting, or modifying a timing deadline under subsection (a) is appropriate, the Director shall publish publicly a notice to such effect.

(c) STATEMENT REQUIRED.—Not later than 20 days after the Director tolls, waives, adjusts, or modifies a timing deadline under subsection (a) and such toll, waiver, adjustment, or modification is in effect for a consecutive or cumulative period exceeding 120 days, the Director shall submit to Congress a statement describing the action taken, relevant background, and rationale for the period of tolling, waiver, adjustment, or modification.

(d) OTHER LAWS.—Notwithstanding section 301 of the National Emergencies Act (50 U.S.C. 1631), the authority of the Director under subsection (a) is not contin22 gent on a specification made by the President under such section or any other requirement under that Act (other than the emergency declaration under section 201(a) of such Act (50 U.S.C. 1621(a))). The authority described in this section supersedes the authority of title II of the National Emergencies Act (50 U.S.C. 1621 et seq.).

(e) EMERGENCY PERIOD.—The emergency period described in this subsection includes the duration of the portion of the emergency declared by the President pursuant to the National Emergencies Act on March 13, 2020, as a result of the COVID–19 outbreak (and any renewal thereof) beginning on or after the date of the enactment of this section and the 60 day period following such duration.

(f) RULE OF CONSTRUCTION.—Nothing in this section may be construed as limiting other statutory authorities the Director may have to grant relief regarding filings or deadlines.

(g) SUNSET.—Notwithstanding subsection (a), the authorities provided under this section shall expire upon the expiration of the 2-year period after the date of the enactment of this section.

(h) DEFINITIONS.—In this section:

(1) DIRECTOR.—The term ‘‘Director’’ means the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

(2) TRADEMARK ACT.—The term ‘‘Trademark Act’’ means the Act entitled ‘‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’’, approved July 5, 1946 (15 U.S.C. 1051 et seq.).

(i) EMERGENCY REQUIREMENT.—The amount provided by this section is designated by the Congress as being for an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985.

NATIONAL EMERGENCY RELIEF AUTHORITY FOR THE REGISTER OF COPYRIGHTS

SEC. 19011. S2146 of March 25, 2020 Congressional Record.

(a) AMENDMENT.—Chapter 7 of title 17, United States Code, is amended by adding at the end the following: ‘‘§ 710. Emergency relief authority ‘‘(a) EMERGENCY ACTION.—If, on or before December 31, 2021, the Register of Copyrights determines that a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) generally disrupts or suspends the ordinary functioning of the copyright system under this title, or any component thereof, including on a regional basis, the Register may, on a temporary basis, toll, waive, adjust, or modify any timing provision (including any deadline or effective period, except as provided in subsection (c)) or procedural provision contained in this title or chapters II or III of title 37, Code of Federal Regulations, for no longer than the Register reasonably determines to be appropriate to mitigate the impact of the disruption caused by the national emergency. In taking such action, the Register shall consider the scope and severity of the particular national emergency, and its specific effect with respect to the particular provision, and shall tailor any remedy accordingly.

‘‘(b) NOTICE AND EFFECT.—Any action taken by the Register in response to a national emergency pursuant to subsection (a) shall not be subject to section 701(e) or subchapter II of chapter 5 of title 5, United States Code, and chapter 7 of title 5, United States Code. The provision of general public notice detailing the action being taken by the Register in response to the national emergency under subsection (a) is sufficient to effectuate such action. The Register may make such action effective both prospectively and retroactively in relation to a particular provision as the Register determines to be appropriate based on the timing, scope, and nature of the public emergency, but any action by the Register may only be retroactive with respect to a deadline that has not already passed before the declaration described in subsection (a).

‘‘(c) STATEMENT REQUIRED.—Except as provided in subsection (d), not later than 20 days after taking any action that results in a provision being modified for a cumulative total of longer than 120 days, the Register shall submit to Congress a statement detailing the action taken, the relevant background, and rationale for the action.

‘‘(d) EXCEPTIONS.—The authority of the Register to act under subsection (a) does not extend provisions under this title requiring the commencement of an action or proceeding in Federal court within a specified period of time, except that if the Register adjusts the license availability date defined in section 115(e)(15), such adjustment shall not affect the ability to commence actions for any claim of infringement of exclusive rights provided by paragraphs (1) and (3) of section 106 against a digital music provider arising from the unauthorized reproduction or distribution of a musical work by such digital music provider in the course of engaging in covered activities that accrued after January 1, 2018, provided that such action is commenced within the time periods prescribed under section 115(d)(10)(C)(i) or 115(d)(10)(C)(ii) as calculated from the adjusted license availability date. If the Register adjusts the license availability date, the Register must provide the statement to Congress under subsection (c) at the same time as the public notice of such adjustment with a detailed explanation of why such adjustment is needed.

‘‘(e) COPYRIGHT TERM EXCEPTION.—The authority of the Register to act under subsection (a) does not extend to provisions under chapter 3, except section 304(c), or section 1401(a)(2).

‘‘(f) OTHER LAWS.—Notwithstanding section 301 of the National Emergencies Act (50 U.S.C. 1631), the authority of the Register under subsection

(a) is not contingent on a specification made by the President under such section or any other requirement under that Act (other than the emergency declaration under section 201(a) of such Act (50 U.S.C. 1621(a))). The authority described in this section supersedes the authority of title II of the National Emergencies Act (50 U.S.C. 1621 et seq.).’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for chapter 7 of title 17, United States Code, is amended by adding at the end the following: ‘‘710. Emergency relief authority.’’.

(c) EMERGENCY REQUIREMENT.—The amount provided by this section is designated by the Congress as being for an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985.