White House Seeks Input to Shape IP Enforcement Strategy

Yesterday afternoon in a blog post on the White House blog, Victoria Espinel, who is the U.S. Intellectual Property Enforcement Coordinator, announced that the Administration is seeking input from the public on a new strategy for intellectual property enforcement.  “The overarching objective of the Strategy is to improve the effectiveness of the U.S. Government’s efforts to protect our intellectual property here and overseas,” said Espinel.  “[I]t matters that we have the right approach—one that is forceful yet thoughtful, dedicated and effective, and that makes good and efficient use of our resources. Therefore, who better to play a key part in shaping the new Strategy than you, the American people?”

Earlier today the Federal Register Notice announcing the Administration attempts to develop a join strategic plan on intellectual property enforcement was published.  The announcement explains by committing to common goals, the United States will more effectively and efficiently combat intellectual property infringement.  Frankly, I don’t know what this means.  Are we not all on the same page already? I know there are nay-sayers out there, but does anyone really take seriously the anti-IP sentiment spewed by the anti-capitalist crowd?  Seriously, thanks to a generation or more of policies that have made it difficult to impossible for manufacturers to succeed in the United States intellectual property is by and large all we have left to drive the economy.

It would seem that the White House isn’t convinced that everyone is marching to the beat of the same drum, to they want everyone to be on the same page with a coherent strategy.  I am all for coherent strategies, but this seems a bit odd if you ask me.  During the summer months in the last year of President Obama’s first term?  Could this have anything to do with the fact that he is increasingly unable to raise campaign contributions from Wall Street and is instead nearly exclusively turning to Hollywood for donations?

Perhaps the President’s Hollywood connections have nothing to do with this, but even if they do it is hardly inappropriate for the government to be interested in greater protection of intellectual property rights.  Intellectual property crime costs jobs and is being increasingly used to fund terrorism and drug cartels.  A recent study titled Intellectual Property and the U.S. Economy: Industries in Focus prepared by the Economics and Statistics Administration and the United States Patent and Trademark Office, found that intellectual property intensive industries support at least 40 million jobs in the United States and contribute more than $5 trillion dollars to U.S. gross domestic product (GDP). See IP Contributes $5 Trillion and 40 Million Jobs to US Economy. Frankly, even if there are broader political motives at play, it is about time that IP take on a more prominent role.

In any event, the Intellectual Property Enforcement Coordinator (IPEC) is asking for written submissions from the public to assist with the development of specific action items relating to both strategic recommendations and threat assessments.  With respect to strategic recommendations, IPEC is seeks recommendations for improving the U.S. Government’s intellectual property enforcement efforts. With respect to threat assessments, IPEC seeks comments and information regarding existing and emerging threats to the protection of intellectual property rights and the identification of threats to public health and safety and the U.S. economy resulting from intellectual property infringement.

Strategic Recommendations

IPEC is requesting specific recommendations relating to improving the government’s intellectual property enforcement efforts.  Recommendations here may include suggestions for legislation, regulation, guidance, executive order, Presidential memoranda, or other executive action, such as changes to agency policies, practices or methods.

Threat Assessment

IPEC is seeking submissions that identify the costs to the U.S. economy resulting from infringement of intellectual property rights, both direct and indirect, including any impact on the creation or maintenance of jobs. Furthermore, IPEC seeks submissions identifying threats to public health and safety posed by intellectual property infringement, in the U.S. and internationally. IPEC also welcomes submissions on the economic costs of enforcing intellectual property rights.

While it may seem odd that comments are being requested relative to threats to public health and safety posed by IP infringement, it would seem that the Administration may be looking for detailed information relative to such things as infringing and inferior drugs brought into the United States from abroad.

Optional Questions

In addition to the two areas of concern already mentioned, the Federal Register Notice also requests comment on 10 other questions labeled as “optional questions.”  They are:

1. How can international regulatory and law enforcement collaboration and information sharing be enhanced to address cross-border intellectual property infringement?

2. What legal or operational changes might be made, or collaborative steps undertaken between federal agencies and the private sector, to streamline or improve the efficacy of enforcement efforts directed at protecting intellectual property rights?

3. What measures can be taken by the private sector to share actionable information on entities engaging in or supporting infringement of intellectual property rights?

a. To the extent necessary, what government safeguards and conditions would be useful to facilitate sharing of such information?

4. What information developed from law enforcement and intelligence community threat assessments would be beneficial to the private sector in order to mitigate the risk of trade secret theft and economic espionage?

5. What additional measures by the U.S. Government would most significantly enhance efforts to combat trade secret theft and economic espionage?

6. When goods are imported into the United States, U.S. Customs and Border Protection (‘‘CBP’’) and other federal agencies charged with enforcing intellectual property rights and ensuring the safety of products entering the stream commerce, e.g., U.S. Food and Drug Administration and the Consumer Product Safety Commission, engage in a risk-based assessment of the level of risk that a shipment contains violative goods., and decides whether to inspect the shipment based on this risk determination. What steps can federal agencies and the private sector take to improve the risk assessment process so that high risk shipments may be quickly identified and segmented from lower risk shipments?

7. What authentication tools and track and trace technologies would significantly enhance federal efforts to identify suspect counterfeit or pirated goods?

8. In a global economy that increasingly utilizes Internet based e- commerce and mobile platforms for transactions, the number of shipments sent through international mail and express carrier services has dramatically grown in recent years. Accordingly, law enforcement efforts directed at interdicting infringing goods shipped in the express and international mail environments have resulted in significant increases to seizure levels of infringing goods shipped through these modes of transit. What steps could be undertaken by CBP, its partner U.S. Government agencies, and the private sector to further improve detection of express carrier and international mail shipments containing infringing goods?

9. Are there ways in which CBP could improve its intellectual property rights e-recordation system to enhance ease of use and make it a more useful tool for intellectual property rights enforcement?

10. As laid out in IPEC’s 2011 Annual Report on Intellectual Property Enforcement, using our resources as efficiently as possible is a priority. Are there additional ways in which the U.S. Government could make more efficient use of its resources in protecting intellectual property?

Submitting Comments

The deadline to submit comments is July 25, 2012, at 5 p.m.  It is not necessary for commenters to respond to all of the questions asked.  Any comments directed to either strategic recommendations or threat assessments may be submitted. All submissions should be electronically submitted to http://www.regulations.gov. Those who are unable to provide comments online can contact the Office of the U.S. Intellectual Property Enforcement Coordinator at [email protected] using the subject line ‘‘Development of the Joint Strategic Plan on Intellectual Property Enforcement’’ or by calling (202) 395–1808 to arrange for an alternate method of transmission.