By Kevin E. Noonan --
The U.S. Trade representative issued a "Special 301 Report" on Monday, pursuant to the provisions of the Trade Act of 1974. This report, on the state of intellectual property rights worldwide, identifies twelve countries on a "priority watch list" and promises consultations with Congress, affected industry groups, and foreign governments to address IP issues. The report "reflects the Administration's resolve to encourage and maintain effective IPR protection and enforcement worldwide."
The Report is promulgated pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (enacted in 1994). The Trade Representative is required under the Act to "identify those countries that deny adequate and effective protection for IPR or deny fair and equitable market access for persons that rely on intellectual property protection." The Trade Representative has implemented these provisions by creating a "Priority Watch List" and "Watch List." Placing a country on the Priority Watch List or Watch List is used to indicate that the country exhibits "particular problems . . . with respect to IPR protection, enforcement, or market access for persons relying on intellectual property." These watch lists are reserved for countries having "the most onerous or egregious acts, policies, or practices and whose acts, policies, or practices have the greatest adverse impact (actual or potential) on the relevant U.S. products."
The Priority Watch List of the report lists China, Russia, Argentina, Chile, India, Israel, Pakistan, Thailand, Venezuela, and the Watch List names Algeria, Belarus, Bolivia, Brazil, Canada, Czech Republic, Ecuador, Egypt, Greece, Hungary, Indonesia, Italy, Jamaica, Kuwait, Lebanon, Malaysia, Mexico, Norway, Philippines, Poland, Romania, Saudi Arabia, Spain, Taiwan, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, and Vietnam; this is an upgrade for Egypt, Lebanon, Turkey, and the Ukraine, which were on the Priority Watch List in prior years.
As in prior years, the majority of the report focuses on software and entertainment piracy. However, the report does address the problem of manufacturing and distributing counterfeit pharmaceuticals, singling out Brazil, China, India, Mexico, and Russia as countries where such incidents have "proliferated" and noting that counterfeit pharmaceuticals are sold and distributed in several countries. The report also identifies both actual ("physical") and Internet-based ("virtual") markets for counterfeit goods. The report also reviews the status of patent and other intellectual property rights country by country for all the countries on these two lists. Some of the countries specifically examined in the report and listed on one of the Watch Lists are perennial delinquents with regard to patent and other IP rights, including Russia, China, Brazil, India and Thailand (and have been the focus of past Patent Docs articles). Some of the others are more surprising, as they are U.S. trade partners or otherwise might be expected to respect IP rights. These include Israel, placed on the Priority Watch List because "[t]he United States remains seriously concerned . . . with Israel's inadequate level of protection against unfair commercial use of undisclosed test and other data generated to obtain marketing approval for pharmaceutical products, and Israel's laws that adversely affect the term of pharmaceutical patent protection by effectively reducing the time granted to compensate for delays in obtaining regulatory approval of a drug." Canada is on the Watch List for failing to accede to the WIPO Internet Treaties, ineffective actions against counterfeit goods transshipped through Canada to the U.S. market, and Canada's "weak border methods." Italy has been characterized by U.S. industries that rely on copyright as having "one of the highest overall piracy rates in Western Europe." The Report includes Norway on the Watch List because "[t]he regulatory framework in Norway regarding process patents filed prior to 1992 denies adequate protection to nearly 75 percent of the pharmaceutical products currently on the Norwegian market," as reported to the U.S. government by U.S. pharmaceutical companies.
The U.S. Trade Representative Report provides insights into both the concerns of U.S. IP rights holders and the administration's intentions to work with, cajole, coerce, or threaten other countries to increase protection for IP rights of U.S. IP rights holders. Western governments have been frustrated, particularly with regard to pharmaceutical products, in implementation of international trade treaties designed to increase IP rights protection. The Report is in some ways the answer to the question, "What are we going to do about it?"
For additional information on this and other related topics, please see:
• "Thailand Continues Its Compulsory Licensing Practices," March 11, 2008
• "More on the Global Drug Patenting Crisis," August 14, 2007
• "EU Trade Commissioner Sends Warning Letter to Thailand," August 13, 2007
• "Worldwide Drug Pricing Regime in Chaos," May 9, 2007
Any talk of adding the U.S. to the list?? Or is this the old, "Do as I say, not as I do"??
Posted by: Sean | April 30, 2008 at 06:54 PM
Sean:
I don't think THAT's gonna happen. From curiosity, what trade/IP rights transgressions would you include in a Report listing for the U.S.?
Thanks for the comment
Posted by: Kevin E. Noonan | April 30, 2008 at 07:18 PM
Just the three-pronged (legislative, executive, judicial) attack presently underway on the patent system...
As has been rightly observed, the entire world will suffer if the U.S. continues to weaken its patent system. The trend of poor (from a policy standpoint) judicial decisions, proposed changes to PTO rules, and proposed legislative reform are doing nothing but weakening the system. The true effects won't be felt for years, but are real nonetheless. How is that worse than not recognizing or enforcing "rights" in IP?
Posted by: Sean | May 01, 2008 at 03:43 PM
Sean:
I guess the answer is in Matthew 7:3
And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?
Thanks for the comment.
Posted by: Kevin E. Noonan | May 01, 2008 at 10:50 PM