The Obama Administration recently issued its 2013 Joint Strategic Plan on Intellectual Property Enforcement, building on the Joint Strategic Plan issued three years ago. In its 88 pages, the 2013 Plan outlines steps for federal agencies to take over the next three years to combat “[IP] infringement that has a significant impact on the economy, the global economic competitiveness of the United States, the security of our Nation, and the health and safety of the American public.”
U.S. Intellectual Property Enforcement Coordinator, Victoria Espinel, lauds “a number of accomplishments” achieved since the first Plan (pp. 1-3): increased law enforcement activity against infringers in terms of investigations and seizures; enactment of legislation heightening the penalties for trade secret theft and counterfeit drug trafficking; private sector companies’ adoption of “best practices” for curbing online piracy and the sale of counterfeit goods; and negotiations of agreements with trading partners for greater protection and enforcement abroad. She notes that “the Administration will continue to improve upon these efforts” to protect an industry that in 2010 reportedly accounted for more than one-third of the U.S. gross domestic product, 60 percent of all U.S. experts, and more than 27 million jobs. She then focuses on three specific issues for ongoing discussion (pp. 5-7): “troubling patent litigation tactics that present a significant and growing challenge to innovation”; “efforts by foreign governments to condition market access or the ability to do business on the transfer of trade secrets or proprietary transfer” (“forced technology transfer”); and the challenges and opportunities presented by “trends and innovations” such as “cloud computing, mobile computing… and 3D printing.”
The heart of the 2013 Plan includes 26 specific action items, divided into six goal-oriented categories, to guide the agencies through 2016 and beyond. These items and goals include:
- Leading by Example (pp. 13-15): secure the U.S. Government supply chain against counterfeits; and ensure the Government’s software use complies with its license agreements.
- Improving Transparency and Public Outreach (pp. 15-19): increase openness in enforcement policy-making and international negotiations; maintain communications between federal law enforcement and IP stakeholders; organize an interagency group to evaluate issuance of exclusion orders by the International Trade Commission; educate authors about the fair use doctrine; and raise public awareness both here and abroad of the dangers of counterfeiting and piracy.
- Ensuring Efficiency and Coordination (pp. 19-25): increase cooperation of federal, state, and local law enforcement; organize an interagency group to identify new technology for use in border enforcement and other areas; continue the work of key U.S. Embassy IP Working Groups and diplomatic officials abroad; coordinate agencies in the delivery of IP-related training and capacity-building programs to foreign judges and other authorities; and consider the institution of copyright and patent small claims court proceedings.
- Enforcing Our Rights Abroad (pp. 25-34): expand partnerships between federal law enforcement and international counterparts; strengthen enforcement through international programs such as the World Customs Organization’s Cargo Target System; leverage trade policy tools such as Special 301 reviews of the IP protection schemes of trading partners; combat infringing foreign-based and foreign-controlled websites; ensure the continued protection of IP at ICANN as new generic top-level domains are implemented; educate and support small and medium-size enterprises in foreign markets; and study the nexus between counterfeiting activities and unacceptable labor conditions.
- Securing the Supply Chain (pp. 34-39): support efforts to expand the information-sharing authority of the Department of Homeland Security and Customs and Border Patrol; work with international postal operators and private sector-based express carriers to better identify shipments of counterfeit goods; encourage voluntary initiatives in the private sector to curb online IP infringement and illegal internet pharmacies; and combat counterfeit pharmaceuticals and medical devices through track-and-trace systems and destruction of counterfeits.
- Creating a Data-Driven Government (pp. 40-41): coordinate an interagency review of existing legislation, to be completed within 120 days of submission of the 2013 Plan; issue annual reports on the number of jobs and percentage of GDP attributable to IP, with the next such report due in December 2013; and issue annual reports on the agencies’ expenditure of resources for IP enforcement.
One blogger at BNA Bloomberg has generated a comparison of these action items with those listed in the 2010 Plan. There are seven new proposals in the 2013 Plan, including the one for consideration of small claims proceedings in patent and copyright matters and the one for examination of labor conditions associated with infringing goods.
The remainder of the 2013 Plan focuses on the recent major enforcement activities of the individual agencies (pp. 43-86), including the U.S. Patent and Trademark Office, U.S. Copyright Office, International Trade Administration, Commercial Law Development Program, Department of Homeland Security, Department of Health and Human Services, Department of Justice, and U.S. Trade Representative.
The 2013 Plan was issued on the heels of another report late last month by the Commission on the Theft of American Intellectual Property, an advisory group formed to provide recommendations to the U.S. Congress. The 89-page report outlines the staggering blow that IP theft deals to the American economy, roughly $300 billion worth of damage per year, with 50 to 80 percent of the blame attributed to theft originating in China. The report also outlines various measures that the U.S. Government may take to remedy the situation, and while some bloggers (see here and here) cheered these recommendations, the report was largely criticized by others (see here, here, and here) who could not get past two paragraphs in the report (p. 81); the Commission recommended the potential use of certain files — dubbed “ransomware” by the latter group — to “recover or render inoperable intellectual property stolen through cyber means.” Notably, the Commission recommends the creation of a private civil cause action for trade secret theft under the Economic Espionage Act.
The 2013 Plan does not address trade secrets in any great detail which is a bit of a surprise as IPEC published a Notice in the Federal Register soliciting public comments for a legislative review related to economic espionage and trade secret theft earlier this year as part of the “five point plan” intended to combat the theft of U.S. trade secrets. One explanation may be that the two plans have different focuses. The ABA IP Section and AIPLA, as well some legal commentators (e.g. John Marsh, Peter Toren, Ken Vanko and Seyfarth’s Robert Milligan), have come out in support of creating a civil claim in federal court for trade secret theft in some form. Hopefully, we will see more from the Administration on the trade secrets front later this summer to address trade secret theft, particularly by foreign governments, companies, or individuals or for their benefit.
We will continue to monitor developments the Administration and others take in the war against IP theft worldwide with a focus on trade secret protection.