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Joint Strategic Plan on Intellectual Property Enforcement SECTION 4 posts and ads; or rely on pseudonymous product reviews, blog entries or fabricated social media profiles to provide an aura of legitimacy? Research on Patents is Needed… • To assess the effects of recent amendments to the Federal Rules of Civil Procedure. Research into the effects on pleadings of the December 2015 reforms to the Federal Rules of Civil Procedure is needed to assess the impact of those changes and whether further changes are necessary or advisable. • To assess the effects of recent judicial decisions on the patent landscape. Researchers are urged to evaluate the effects of recent Supreme Court decisions on the patent landscape, including: pleading standards as set forth in Bell Atlantic Corp v. Twombly and Aschcroft v. Iqbal; effects of litigation resulting from awarding of attorney’s fees as set forth in Highmark and Octane Fitness; and whether post-grant review of patent eligibility have improved patent quality and/or impacted the frequency of frivolous litigation. • To analyze litigation patterns. Policymakers would benefit from a greater understanding of patent litigation trends and patterns. For example, research focused on the causes of any increases in patent litigation both prior to and immediately after passage of the American Invents Act in 2011 would assist policymakers in understanding whether any increases were related to upticks in false marking cases or incentives resulting from the AIA’s change to the joinder rule. • To analyze litigation’s effects on the innovation economy. Research is needed to evaluate whether there is any relationship between patent litigation and various measures of innovation in the economy, including whether the patent litigation climate impacts the value of a patent. • To consider factors affecting awarding of damages. There is some indication that non-practicing entities (NPEs) may receive higher total damages than practicing entities (PEs). Research is needed into this possible difference, including root causes, and the effects of any settlement calculus employed by NPEs. Research into Commercial-Scale Piracy is Needed… • To assess the economic scope and magnitude of digital piracy. Beyond any top-line numbers, what is the magnitude of the harm suffered by the copyright owner? What is the impact on employment in the creative sectors? Who are the entities that profit from, or may be unjustly enriched by, the unauthorized exploitation of copyrighted materials? • To develop a clearer picture of rogue online actors. Topics that research might tackle include: (1) the structure and composition of entities deliberately facilitating the dissemination (downloading or streaming) of copyrighted content; (2) the business models employed by illicit actors to derive revenue from acts of commercial piracy; and (3) the evasive tactics employed to enhance resiliency from court orders and injunctive remedies. • To assess the nature of intermediary exploitation by criminal actors. Further research is needed on the extent to which intermediaries—including website hosting platforms, online marketplaces, banks, payment processors, social networks, and others—are exploited by criminal actors, and the size of revenue that may be generated by intermediaries as a result of third-party illicit activity. • To examine the range of attendant harms and risks to the public. What is the relationship between pirated content and incidents of malware, phishing, or other threats to the public? • To collect and compile data on the effectiveness of existing remedies, including the state of domestic and foreign injunctive relief and damages. What is the state of injunctive relief and damages for commercialscale piracy operations, domestically and abroad, and how have illicit actors responded or evolved to these legal actions? What trends exist? • To assess effectiveness of voluntary initiatives. What framework should be used to assess the effectiveness of voluntary initiatives and industry best practices in light of rapidly changing virtual and technological environment? 146
Office of the Intellectual Property Enforcement Coordinator • To understand how to put “big data” to work to better understand, and minimize, commercial exploitation of copyrighted content. How to increase transparency and better insight into criminal exploitation across ad networks, payment processing, and other digital transactions in order to understand the characteristics of the illicit actor, and support efforts to preserve the integrity of the exploited platforms and services? For example, available generalized and anonymized data on terminated advertising or payment processing accounts (such as, for example, duration of account, dollar flow, general geographical location, etc.) may improve benchmarking of enforcement initiatives and enable stakeholders to identify opportunities for further advancement of underlying policy objectives. • To understand common tactics employed by operators of websites that promote counterfeit goods or unauthorized content. For example, how do illicit actors exploit various domain environments to successfully evade law enforcement through “domain name hopping” and other strategics? Research on Trade Secret Theft is Needed… • To assess the magnitude of trade secret theft. Research is needed into the scale and economic impacts of trade secret theft on the U.S. economy, including the impact to the competitiveness of U.S. exports, national economic interests, and the jobs market. • To assess the degree of cybersecurity preparedness in the private sector. Further research is needed on the share of U.S. businesses, including SMEs, that are actively engaged in cybersecurity prevention, monitoring, and resiliency planning. • To determine global remedies and procedural difficulties faced by rights holders. Comprehensive comparative legal analysis of trade secret protections and procedures around the world would increase many rights holders’ understanding of the markets in which they operate. Analysis of experiences prosecuting trade secret rights abroad, including effectiveness of administration of trade secret laws, would also benefit rights holders and policymakers. SECTION 4 147
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U.S. JOINT STRATEGIC PLAN ON INTELL
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B. In Furtherance of a Healthy Doma
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PREAMBLE A Reflection on Creativity
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INTRODUCTION IP-intensive industrie
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EXECUTIVE SUMMARY Services, the Dep
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1 THE GLOBAL SCALE OF INTELLECTUAL
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INTRODUCTION The story of intellect
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SECTION 2 CONTENTS HELPING TO PROMO
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3 SECURE AND FACILITATE LEGITIMATE
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INTRODUCTION U.S. and international
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