Posts Tagged: "Special 301 Report"

The Office of the United States Trade Representative (USTR) released its annual Special 301 Report today, which identified 27 trading partners of the United States as being either on the “Priority Watch List” or “Watch List.” This means that “particular problems exist in that country with respect to IP protection, enforcement, or market access for U.S. persons relying on IP,” according to the Report. While the Priority Watch List is shorter this year, the USTR continues to highlight concerns about China, particularly with respect to recent statements made by Chinese officials about the role of IP in achieving Chinese market dominance.

The Office of the United States Trade Representative’s (USTR’s) 2021 Special 301 Report, published late last month, brought into sharp relief one of the ongoing issues the United States has with China. The country was again listed on its “Priority Watch List” in this annual review of the state of intellectual property (IP) protection and enforcement in the United States’ international trading partners, and the report explained that the United States remains unsatisfied with China’s failure to grant IP protection and enforcement to foreign rights holders. On the surface, very little is surprising about the USTR’s statement concerning China’s approach to the enforcement of IP rights. By now, China’s failures in the context of IP enforcement are a well-known refrain in the Western media. But dig beneath the surface, and the statement raises a multiplicity of issues that have gone unaddressed. Which IP rights are at issue? Whose IP rights are not being enforced? Should one country enforce the IP rights of the citizens of another country? If so, how and in what way does it do that? Last but not least, has the United States enforced the IP rights of the citizens of other countries?

On April 29, the Office of the U.S. Trade Representative (USTR) released its 2020 Special 301 Report on Intellectual Property Protection and its 2019 Review of Notorious Markets for Counterfeiting and Piracy. The Report identifies countries and IP-related market access barriers and steps necessary to address those barriers. Section I of the Report highlights “Developments in Intellectual Property Rights Protection, Enforcement, and Related Market Access” and Section II is a Priority Watch List including country reports for countries where particular problems exist with respect to IP protection, enforcement, or market access. The Review identifies illustrative examples of online and physical markets that are alleged to have contributed to substantial trademark counterfeiting and copyright piracy activities around the world.

On April 25, the Office of the U.S. Trade Representative (USTR) released both its annual Special 301 Report and an updated Notorious Markets List, each of which highlights international issues facing U.S. intellectual property owners living in the United States and abroad. The Special 301 Report this year includes 36 countries that have been placed on watch lists for either inadequate IP protections or denying IP rights to U.S. rights holders. Similarly, the Notorious Markets List includes a non-exhaustive collection of online and physical markets that are alleged to have contributed to piracy and counterfeiting activities around the world. The Special 301 Report makes it clear that China is the source of greatest concern for U.S. owners of all types of intellectual property. The report’s executive summary notes that China remains on the USTR’s Priority Watch List for various reasons, including forced tech transfer, discriminatory licensing practices and high-volume counterfeit manufacture. Other countries included on the Priority Watch List are India, where the national government has restricted transparency on state-issued pharmaceutical manufacturing licenses and expanded patentability exceptions for rejecting pharmaceutical patents; Indonesia, where concerns have been raised over patentability criteria and compulsory licensing; and Saudi Arabia, which has failed to address concerns involving lack of IP protection for pharmaceuticals and the illicit pirate service BeoutQ.

This week in Other Barks & Bites, governments and intellectual property offices around the world celebrate World IP Day; the U.S. Trade Representative releases its most recent Notorious Markets List; TiVo subsidiary Rovi files another patent suit against licensing holdout Comcast; Amazon ramps up program for connecting sellers with lawyers for patent infringement issues; the USPTO seeks public comments on gathering data for SUCCESS Act study; music industry groups submit letter to Copyright Office regarding Mechanical Licensing Collective membership; and weak China data center sales sends Intel stock tumbling by 7.5 percent.

According to the Office of the United States Trade Representative, imports of counterfeit and pirated physical products are valued at about half a trillion dollars, or about 2.5 percent of all imports around the globe… The recent review of notorious markets by the USTR identifies 43 such markets offering counterfeit or pirated goods either through physical stores or online channels. A total of 25 notorious markets identified in the report operate in the online space as websites either facilitating infringing conduct or lacking consumer privacy safeguards, some of which even enable the installation of malware on consumer computers. This malware can include remote access Trojans (RATs) which can steal sensitive personal information, like bank account information, or gain control of computer hardware.

Plans are being made by the Trump administration to open a probe into deceptive Chinese trade practices by invoking Section 301 of the Trade Act of 1974… Where joint venture tech transfer rules are concerned, however, the Trump administration may well find out that the Chinese government is enabling practices that do violate international treaties. Foreign entities who want to operate in the Chinese market are typically forced to do so as joint ventures with domestic entities and the transfer of intellectual property assets from the foreign entity to the domestic one is often enforced. That policy runs afoul of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).