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Joint Strategic Plan on Intellectual Property Enforcement SECTION 4 21 See The White House, “The Trans-Pacific Partnership: What You Need to Know about President Obama’s Trade Agreement” (“Last year, we broke the record in American exports for the fifth year in a row, selling $2.34 trillion in goods and services abroad.”) accessed from: https://www.whitehouse.gov/issues/ economy/trade. 22 See United States Department of Commerce, “Intellectual Property and the U.S. Economy: 2016 Update (2016),” at p. 27, accessed from http://www.uspto.gov/sites/default/files/ documents/IPandtheUSEconomySept2016.pdf. 23 See Section 1. 24 See, e.g., World Health Organization (WHO), “Substandard, spurious, falsely labelled, falsified and counterfeit (SSFFC) medical products” (Updated January 2016) (“No countries remain untouched by this issue — from North America and Europe through to Sub Saharan Africa, South East Asia, and Latin America. What was once considered a problem suffered by developing and low income countries has now become an issue for all. . . . However, it is low- and middle-income countries and those in areas of conflict, or civil unrest, with very weak or non-existent health systems that bear the greatest burden of SSFFC medical products.”) (emphasis added), accessed from http://www.who.int/mediacentre/factsheets/fs275/en/. 25 See World Customs Organization (WCO), “High-impact Customs operation tackles illicit medicines in Africa” (October 25, 2012), accessed from http://www.wcoomd.org/en/media/ newsroom/2012/october/high-impact-customs-operationtackles-illicit-medicines-in-africa.aspx. 26 Pursuant to Section 182 of the Trade Act of 1974, as amended (19 U.S.C. § 2242), the Office of the United States Trade Representative (USTR) is required to identify “those foreign countries that deny adequate and effective protection of intellectual property rights, or deny fair and equitable market access to United States persons that rely upon intellectual property protection.” To aid in the administration of the statute, USTR created the “Special 301 Priority Watch List” and the “Special 301 Watch List” under the Special 301 provisions. Placement of a trading partner on the Priority Watch List or the Watch List indicates that particular problems exist in that country with respect to IPR protection, enforcement, or market access for persons relying on IPR. Countries placed on the Priority Watch List are the focus of increased bilateral attention concerning the specific problem areas. Additionally, under Section 306 of the Trade Act of 1974, as amended (19 U.S.C. § 2416), USTR monitors a trading partner’s compliance with measures that are the basis for resolving an IPR-based investigation under Section 301 of the Trade Act, as amended (19 U.S.C. § 2411). USTR may apply sanctions if a country fails to satisfactorily implement such measures. 27 See Office of the United States Trade Representative, “Report to Congress on China’s WTO Compliance,” at p. 9 (December 2015), accessed from https://ustr.gov/sites/default/ files/2015-Report-to-Congress-China-WTO-Compliance.pdf. 28 See Office of the United States Trade Representative, “2016 Special 301 Report,” (2016), accessed from: https://ustr.gov/ sites/default/files/USTR-2016-Special-301-Report.pdf. 29 United States Department of Commerce, “Intellectual Property and the U.S. Economy: 2016 Update,” at p. 22 (September 2016), accessed from http://www.uspto.gov/sites/ default/files/documents/IPandtheUSEconomySept2016.pdf. 30 See Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, “Enhanced Patent Quality Initiative: Moving Forward” (November 6, 2015), accessed from http://www.uspto.gov/blog/director/entry/ enhanced_patent_quality_initiative_moving. 31 U.S. Const., art. 1, sec. 8, cl. 8 (among the powers of Congress is “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”). 32 See United States Patent and Trademark Office (USPTO), “Request for Comments on Enhancing Patent Quality,” 80 FR 6475, at 6476 (February 5, 2015) (“As the USPTO commences its enhanced patent quality initiative, the USPTO is targeting three aspects of patent quality, termed the ‘patent quality pillars.’ These pillars are: (1) Excellence in work products, in the form of issued patents and Office actions; (2) excellence in measuring patent quality, including appropriate quality metrics; and (3) excellence in customer service.”), accessed from https:// www.federalregister.gov/articles/2015/02/05/2015-02398/ request-for-comments-on-enhancing-patent-quality; USPTO, “Enhanced Patent Quality Initiative” (USTPO webpage on the Initiative), accessed from https://www.uspto.gov/patent/ initiatives/enhanced-patent-quality-initiative-0. 33 See Executive Office of the President, Council of Economic Advisers, Issue Brief on “The Patent Litigation Landscape: Recent Research and Developments” (March 2016), accessed from https://www.whitehouse.gov/sites/default/files/page/ files/201603_patent_litigation_issue_brief_cea.pdf; Yeh, Brian T., Congressional Research Service, “An Overview of the ‘Patent Trolls’ Debate” (April 16, 2013), accessed from http://fas.org/ sgp/crs/misc/R42668.pdf. 34 See Federal Trade Commission, “Patent Assertion Entity Activity: An FTC Study” (October 6, 2016), accessed from https:// www.ftc.gov/reports/patent-assertion-entity-activity-ftc-study. 35 See Executive Office of the President, Council of Economic Advisers, Issue Brief on “The Patent Litigation Landscape: Recent Research and Developments,” at pp. 5-7 (March 2016), accessed from https://www.whitehouse.gov/sites/default/ files/page/files/201603_patent_litigation_issue_brief_cea.pdf; Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011); Alice Corp. v. CLS Bank Int’l, 134 S.Ct. 2347 (2014) (patent eligibility); The National Law Review, “New Federal Rules of Civil Procedure: 3 Must Read Changes” (December 23, 2015) (discovery), accessed from http://www.natlawreview.com/article/ new-federal-rules-civil-procedure-3-must-read-changes; Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014) (attorneys’ fees), and Highmark, Inc. v. Allcare Health Mgmt. System, Inc., 134 S. Ct. 1744 (2014) (attorneys’ fees). 36 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011). 37 See, e.g., Farre-Mensa, Joan, et al., “The Bright Side of Patents,” NBER Working Paper 21959 (February 2016), accessed from http://www.nber.org/papers/w21959.pdf. In the Abstract, the authors explain that: “We examine whether patents help startups grow and succeed . . . We find that patent approvals help startups create jobs, grow their sales, innovate, and reward their investors. Exogenous delays in the patent examination process significantly reduce firm growth, job creation, and innovation, even when a firm’s patent application is eventually approved. . . .” 150
Office of the Intellectual Property Enforcement Coordinator 38 See World Intellectual Property Organization, “IP5 Statistics Report 2011,” (2011) at p.80, accessed from http://www.fiveipoffices.org/statistics/statisticsreports/ statisticsreport2011edition/PCT.pdf. 39 See, e.g., Organization for Economic Co-operation and Development (OECD), “Public Sector Transparency and The International Investor,” at p. 37 (2003), accessed from https:// www.oecd.org/investment/investment-policy/18546790.pdf. 40 See Office of the U.S. Trade Representative, “2016 Special 301 Report,” at p. 10 (April 2016), accessed from https://ustr. gov/sites/default/files/USTR-2016-Special-301-Report.pdf. 41 This is based on the design-application statistics for 2016 (January through September) on the website of the World Intellectual Property Organization (WIPO). During this period, the top five jurisdictions – among the designated contracting parties – were the European Union (3,089 design applications), the United States (1,624), Switzerland (1,462), Turkey (1,033), and Japan (878). WIPO, “Statistics under the Hague System,” accessed from http://www.wipo.int/hague/en/statistics/ monthly_stats.jsp?type=DALL&name=6&count=COUNT. The website for the United States Patent and Trademark Office (USPTO) has additional information about the Hague System. See USPTO, “Hague Agreement Concerning the International Registration of Industrial Designs,” accessed from https://www. uspto.gov/patent/initiatives/hague-agreement-concerninginternational-registration-industrial-designs. 42 See Office of the National Counterintelligence Executive, “Foreign Spies Stealing US Economic Secrets in Cyberspace: Report to Congress on Foreign Economic Collection and Industrial Espionage, 2009-2011” (October 2011), accessed from https://www.ncsc.gov/publications/reports/fecie_all/ Foreign_Economic_Collection_2011.pdf. Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods,” (April 2010), accessed from http://www.gao. gov/new.items/d10423.pdf. 48 Defense Security Service, United States Department of Defense, “Targeting U.S. Technologies: A Trend Analysis of Reporting From Defense Industry,” (2012), accessed from http:// www.dss.mil/documents/ci/2012-unclass-trends.pdf. 49 President Barack Obama, “A New Tool Against Cyber Threats” (April 1, 2015), accessed from https://medium. com/@PresidentObama/a-new-tool-against-cyber-threats- 1a30c188bc4#.dkbljtcbx. 50 See The White House, “Fact Sheet: Cybersecurity National Action Plan” (February 6, 2016), accessed from https://www. whitehouse.gov/the-press-office/2016/02/09/fact-sheetcybersecurity-national-action-plan. 51 Office of Management and Budget, “Category Management Policy 16-1: Improving the Acquisition and Management of Common Information Technology: Software Licensing” (OMB Memorandum M-16-12; June 2, 2016), accessed from https://www.whitehouse.gov/sites/default/files/omb/ memoranda/2016/m-16-12_1.pdf. 52 Anne Rung, United States Chief Acquisition Officer, and Tony Scott, United States Chief Information Officer, “Applying Category Management Principles to Software Management Practices” (June 2, 2016), accessed from https://www.whitehouse. gov/blog/2016/06/02/applying-category-managementprinciples-software-management-practices. 53 Executive Order 13103 of September 30, 1998, on “Computer Piracy” (63 FR 53273; October 5, 1998), accessed from https:// www.gpo.gov/fdsys/pkg/FR-1998-10-05/pdf/98-26799.pdf. 43 See 18 U.S.C. § 1839(3) (definition of “trade secret”); The Uniform Trade Secret Act, § 1(4) (definition of “trade secret”), accessed from http://www.uniformlaws.org/shared/docs/ trade%20secrets/utsa_final_85.pdf. 44 Leslie R. Caldwell, Assistant Attorney General, Criminal Division, United States Department of Justice, “Kolon Industries Inc. Pleads Guilty for Conspiring to Steal DuPont Trade Secrets Involving Kevlar Technology: Kolon Sentenced To Pay $360 Million in Restitution And Fines” (April 30, 2015), accessed from https://www.justice.gov/opa/pr/kolon-industries-inc-pleadsguilty-conspiring-steal-dupont-trade-secrets-involving-kevlar. 45 This Figure is found in The Center for Responsible Enterprise And Trade and PricewaterhouseCoopers LLP, Economic Impact of Trade Secret Theft: A framework for companies to safeguard trade secrets and mitigate potential threats, p. 20 Figure 8 (February 2014), accessed at http://www.pwc.com/us/en/ forensic-services/publications/assets/economic-impact.pdf. 46 Executive Office of the President, “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets,” at p. 1 (February 2013), accessed from https://www.whitehouse.gov/sites/default/ files/omb/IPEC/admin_strategy_on_mitigating_the_theft_ of_u.s._trade_secrets.pdf. 47 See The Commission on the Theft of American Intellectual Property, “The IP Commission Report: The Report of the Commission on the Theft of American Intellectual Property,” (May 2013), accessed from http://www.ipcommission.org/ report/ip_commission_report_052213.pdf; Government Accountability Office, “Intellectual Property: Observations on 54 Office of Management and Budget, “Category Management Policy 16-1: Improving the Acquisition and Management of Common Information Technology: Software Licensing” (OMB Memorandum M-16-12; June 2, 2016), accessed from https://www.whitehouse.gov/sites/default/files/omb/ memoranda/2016/m-16-12_1.pdf. 55 Anne Rung, United States Chief Acquisition Officer, and Tony Scott, United States Chief Information Officer, “Applying Category Management Principles to Software Management Practices” (June 2, 2016), accessed from https://www.whitehouse. gov/blog/2016/06/02/applying-category-managementprinciples-software-management-practices. 56 OMB Memorandum M-16-02 includes the following directions to each agency: (1) “No later than 45 days after issuance of this memo, appoint a software manager, that is responsible for managing, through policy and procedure, all agency-wide commercial and COTS [commercial-off-the-shelf] software agreements and licenses”; (2) “Maintain a continual agencywide inventory of software licenses, including all licenses purchased, deployed, and in use…”; and (3) “Analyze inventory data to ensure compliance with software license agreements, consolidate redundant applications, and identify other costsaving opportunities.” Office of Management and Budget, “Category Management Policy 16-1: Improving the Acquisition and Management of Common Information Technology: Software Licensing,” at p. 3 (OMB Memorandum M-16-12; June 2, 2016), accessed from https://www.whitehouse.gov/sites/default/files/ omb/memoranda/2016/m-16-12_1.pdf. 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PREAMBLE A Reflection on Creativity
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1 THE GLOBAL SCALE OF INTELLECTUAL
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INTRODUCTION The story of intellect
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