IP Industry Comment Opportunity At USPTO: Strategies to Address Counterfeiting and Piracy

The public comment period closes August 23, 2023, and a public roundtable discussion regarding anticounterfeiting and antipiracy will be hosted by the USPTO on October 3, 2023, in Alexandria, VA. Advanced registration for the public roundtable is required.

The Problem: Counterfeited & Pirated Products

Stressing that counterfeited and pirated products pose risks to public health, safety, and national security, the USPTO indicated in its Federal Register notice that such items are easily accessible to consumers across the country through all forms of commerce including physical markets, ecommerce, and social media sites. The USPTO specifically is seeking information on current anticounterfeiting and antipiracy strategies that have proven effective, as well as ideas for future strategies. The Federal Register notice provides a list of 14 specific areas in which the USPTO is asking the public for information.

To provide some perspective, the Federal Register notice states that in fiscal year 2021, US Customs and Border Protection made over 27,000 seizures of counterfeited and pirated products entering US ports, with an estimated manufacturer’s suggested retail price of over $3.3 billion. While this is a fraction of the estimated counterfeit goods entering the United States, it is not inconsequential. IP owners, licensees, manufacturers, retailers, marketplaces, and consumers agree that counterfeiting and piracy place everyone at risk and have significant economic impacts. Among other issues, trading of counterfeited and pirated products hinders innovation and competitiveness among US industries. A report from the US Chamber of Commerce said that piracy and counterfeiting annually cost the US economy between 230,000 and 560,000 jobs, and between $47.5 billion and $115.3 billion in reduced gross domestic product. The pandemic has only increased the sales and distribution of counterfeited products, particularly in the healthcare sector. Indeed, US Customs and Border Protection seized roughly 35 million counterfeit face masks in fiscal year 2021.

Though it is seeking input, the USPTO has made numerous efforts to address counterfeiting and piracy including through its Intellectual Property Attaché and public awareness programs, and by providing technical assistance to trade partners. The USPTO’s efforts have made them keenly aware that counterfeiters and those trading in counterfeited and pirated goods are constantly changing their methods to evade detection and expand the flow of illegal and dangerous products. Given the magnitude of illicit trade in counterfeit and pirated goods, there is ample room to improve in terms of increasing the effectiveness of strategies used to combat counterfeiting and piracy.

Opportunity to Share Strategies, Concerns, and Collaborate

Collaboration and discussion regarding best practices, educational efforts, and global enforcement strategies directed at this enormous problem provide an excellent opportunity for any affected party.

If you wish to discuss the submission of comments individually or as an industry group, or participate in the October Roundtable, please contact one of the authors or any ArentFox Schiff professional. ArentFox Schiff will continue to closely monitor developments, including those during and after the public comment period.