On December 5, 2019, four U.S. senators introduced a bill that would allow Customs and Border Patrol (“CBP”) to directly seize goods based on design patent infringement. The bill is titled the “Counterfeit Goods Seizure Act of 2019.”
Currently, design patents at the CBP can only be enforced by seeking an exclusion order from the International Trade Commission (“ITC”). Under the framework proposed in the bill, however, a complainant would no longer need to obtain an exclusion order from the ITC in the first instance; instead, the bill would give CBP direct authority to seize goods that infringe design patents. The bill would expand CBP’s current authority which allows it to seize goods that violate trademarks and copyrights.
The bill also purports to close a loophole that currently exists which allows counterfeit products to be imported separately from labels containing an infringing trademark. The labels are attached to the products only after the counterfeit products have cleared customs. The framework in the Counterfeit Goods Seizure Act of 2019 would close this loophole.
The bill would significantly lower the costs associated with enforcement of design patents at the CBP, as ITC investigations are expensive.
For the latest updates on this bill and how it could impact your business, please contact me.