U.S. Trade Representative Releases 2022 Special 301 Report

By Kevin E. Noonan --

On April 27th, apparently without a trace of irony, Ambassador Katherine Tai, U.S. Trade Representative (USTR), issued the 2022 Special 301 Report.  In a press release, the USTR stated that "[i]ntellectual property-intensive industries support more than 60 million jobs – from the independent inventor just starting out to the documentary filmmaker studying critical social issues.  We need robust protection and enforcement in foreign countries to protect these individuals, their livelihoods, and ensure they can fairly compete in the global marketplaces."  The press release repeats mention from last year that the review period underlying the Report took place during the COVID-19 pandemic, "the largest global health crisis in more than a century."  And getting right to the heart of the matter, this year as in every year in recent memory, the Trade Representative asserts that "the 2022 Special 301 Report identifies trading partners that are falling short" and that the "Biden-Harris Administration will continue to engage with these trading partners to level the playing field for our workers and businesses."

The press release accompanying the release of the Report notes that its review of Ukraine, which has frequently been criticized particularly with regard to copyright infringement of music, movies, and other media IP, has been suspended due to the Russian invasion in February.  The USTR's press release reiterates the administration's support for the IP waiver being negotiated at the World Trade Organization, tying these efforts (against most informed commentary) to its "comprehensive effort to get as many safe and effective vaccines to as many people as fast as possible."  After extolling China in last year's Report for its IP rights protections and amended laws, Ambassador Tai states that the U.S. is "closely monitoring China's progress in implementing [these] commitments" in light of "concerns about the adequacy of these measures and their effective implementation, as well as about long-standing issues like bad faith trademarks, counterfeiting, and online piracy."  Singled out for praise are Kuwait, Saudi Arabia, Romania, and Lebanon for improvements this past year.  On the other hand, the press release announces that the USTR will commence an "out-of-cycle" review of Bulgaria "to assess whether [that country] makes material progress on addressing deficiencies in its investigation and prosecution of online piracy cases, particularly its failure to adopt evidence sampling in criminal cases," and voices "concerns" with the "aggressive policies" of the EU in promoting its exclusionary geographic indications (e.g., so that a Bordeaux wine actually comes from Bordeaux), singling out relevant provisions of the EU's Common Agricultural Policy that are scheduled to come into effect next year.

According to the Executive Summary of the Report, it is as it was last year "[a] priority of this Administration is to craft trade policy in service of America's workers, including those in innovation-driven export industries."  The Summary further asserts the exhortation that:

The Report serves a critical function by identifying opportunities and challenges facing U.S. innovative and creative industries in foreign markets and by promoting job creation, economic development, and many other benefits that effective IP protection and enforcement support.  The Report informs the public and our trading partners and seeks to be a positive catalyst for change. In addition, given the importance of innovation and IP in developing the advances necessary for fighting the ongoing COVID-19 crisis, this Administration is committed to trade policies that seek to save lives in this pandemic and ensure preparedness for the next one.  USTR looks forward to working closely with the governments of the trading partners that are identified in this year's Report to address both emerging and continuing concerns, and to build on the positive results that many of these governments have achieved.

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 Report also notes the USTR's continued efforts to enhance public engagement.  These efforts were limited to written submissions due to the COVID pandemic and the responses posted online (www.regulations.gov, docket number USTR-2021-0021).  The Report notes that the USTR received submissions from 44 non-government stakeholders and 18 foreign governments.

The USTR reviewed "more than 100" of this country's trading partners and identified seven countries on a "Priority Watch List" (decreased by two from last year) and another 20 countries on the "Watch List" (decreased by three from last year), all relating to deficiencies in intellectual property protection in these countries.  The Priority Watch List in the 2022 Report includes Argentina, Chile, China, India, Indonesia, Russia, and Venezuela (Saudi Araba and Ukraine being removed from the list this year).  Countries on this list "present the most significant concerns this year regarding insufficient IP protection or enforcement or actions that otherwise limited market access for persons relying on intellectual property protection."  On the Watch List this year are Algeria, Barbados, Bolivia, Brazil, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Mexico, Pakistan, Paraguay, Peru, Thailand, Trinidad & Tobago, Turkey, Turkmenistan, Uzbekistan, and Vietnam (Kuwait, Lebanon, and Romania being removed from the list this year).

The Report contains two Sections (on "Developments in Intellectual Property Rights Protection and Enforcement" and "Country Reports") and two Annexes on particular issues (the statutory bases of the Report, and government technical assistance and capacity building efforts).

The Report cites (and emphasizes) significant progress in several U.S. trading partners, including:

• Kuwait, which was removed from the Watch List "for making continued and significant progress on concerns that stakeholders identified with intellectual property (IP) enforcement and transparency."  These include online portals for its Ministry of Commerce and Industry and it Copyright Office for streaming violation reports for trademarks and copyrighted content.  Also noted was Kuwait's "increased engagement and transparency," inter alia, with United States-Kuwait Trade and Investment Framework Agreement (TIFA) Intellectual Property Working Group;

• Saudi Arabia, which moved from the Priority Watch List due to actions by the Saudi Authority for Intellectual Property (SAIP) to publish IP enforcement procedures; "increase enforcement against counterfeit and pirated goods and online pirated content; create specialized IP enforcement courts with trained judges and expedited timelines; conduct strong IP awareness, outreach, training, and support; set up a centralized committee to coordinate IP enforcement actions across multiple authorities; and train IP specialists in 76 different authorities to increase government compliance with IP laws."  (Although also mentioned were concerns by stakeholders regarding the Saudi Arabia Food and Drug Authority (SFDA) that preferentially grants marketing approval for domestic versions of registered products without requiring data showing equivalence to branded drugs);

• Romania, which was removed from the Watch List for "taking significant actions to improve IP protection and enforcement" including appointment of its first ever National IP enforcement coordinator, the establishment of a new department in the economic police dedicated to online piracy, and IP group working sessions in the General Prosecutor Office's Intellectual Property Coordination Department;

• Lebanon, which was removed from the Watch List, because apparently "[s]takeholders have not raised significant concerns about IP protection or enforcement during the Special 301 review";

• Japan, for amending its trademark act to address a personal use exemption for imported good which had been used to send counterfeit good through the mail and by courier services from overseas;

• United Arab Emirates, which had been removed from the Watch List last year, "continued to advance IP protection and enforcement by enacting a series of major legal reforms to its Industrial Property, Trademark, Copyright, and Cyber Crime laws;" and

• Bahrain, for enacting a Protection of New Plants Varieties Law in December 2021, a part of its obligations under a United States-Bahrain Free Trade Agreement."

Also noted in this section of the Report 110 member of the WIPO Performance and Phonogram Treaty and 112 parties to the WIPO Copyright Treaty.

Another Section of the Report involves "illustrative best practices" by U.S. trading partners.  These include "cooperation and coordination among national government agencies involved in IP issues is an example of effective IP enforcement," citing Thailand, India, Saudi Arabia, Brail, Ukraine, and Indonesia for these efforts; "specialized IP enforcement units," in Malaysia; "IP awareness and educational campaigns" in India, Thailand, Trinidad and Tobago, and Saudi Arabia; and "active participation of government officials in technical assistance and capacity building" in Romania, Algeria, India, the Philippines and Brazil.  Micro-, small- and medium-sized enterprises (MSMEs) were particularly noted as "contribut[ing] widely to innovation, trade, growth, investment, and competition" and thus the Report applauds efforts in Hong Kong, the UK, Saudi Arabia, India, and Algeria to support these businesses.

Multilateral and bilateral initiatives are discussed in the Report.  Perhaps significantly the primary multilateral initiative called out in the Report is the WTO, with regard to which the Report states that "[i]n the past year, the United States co-sponsored discussions in the TRIPS Council on the positive and mutually reinforcing relationship between the protection of IP, innovation, and business development."  U.S. efforts include an Intellectual Property and Innovation agenda in the TRIPS Council that presented on relationships between IP and investment, green technology, and women in IP. Pandemic response and preparedness relating to trade facilitation and IP protections rated a mention even without any "multilaterally agreed outcome."  Also mentioned is the failure of WTO to come to agreement in an IP waiver despite the Biden Administration's support for it.

Bilateral agreements and regional initiatives mentioned in the Report include various Trade and Investment Framework Agreements (TIFAs) between the U.S. and several trading partners, discussing specifically such arrangements with Pakistan, Kuwait, Argentina, Indonesia, Central Asia, Taiwan, Ukraine, and India.  The Report states that the United States-Mexico-Canada Agreement (USMCA), updating and revising NAFTA, "secur[ed] strong improvements in the protection and enforcement of IP."  Regional initiatives included in the Report include the Asia-Pacific Economic Cooperation (APEC) Intellectual Property Experts Group which this year considered a U.S.-led initiative on illicit streaming and another on industrial design protection.  Other regional programs discussed in the Report include the African Growth and Opportunity Act, Caribbean Basin Economic Recovery Act, and Caribbean Basin Trade Partnership Act.

Turning to specific issues of concern, trademark counterfeiting is said to harm "consumers, legitimate producers and governments."  The problem is one with global scale, "and involved the production, transshipment, and sale of a vast array of fake goods . . . including semiconductors and other electronics, chemicals, medicines, automotive and aircraft parts, food and beverages, household consumer products, personal care products, apparel and footwear, toys, and sporting goods."  Many of these goods arise in China, whereas India is called out as a source of counterfeit medicines and Turkey for counterfeit apparel and foodstuffs.  Such goods are transshipped according to the Report through hubs in Hong Kong, Turkey, Kazakhstan, Kyrgyzstan, and the UAE and sold in markets in Brazil, Nigeria, Russia, and Paraguay.  Citing a 2021 Organisation for Economic Co-operation and Development (OECD) and European Union Intellectual Property Office (EUIPO) study the Report states that the "global trade in counterfeit and pirated goods reached $464 billion in 2019, accounting for 2.5% of the global trade in goods for that year," with China being the largest country of origin for counterfeit and fake goods and Singapore border enforcement mentioned for weakness and "lack of coordination between Singapore's Customs authorities and the Singapore Police Force's Intellectual Property Rights Branch."

Counterfeit pharmaceuticals remain a particular concern, having "important consequences for consumer health and safety [that are] exacerbated by the rapid growth of illegitimate online sales . . . [and] contributes to the proliferation of substandard, unsafe medicines that do not conform to established quality standards."  Most of these goods confiscated by the U.S. were transshipped through India, China, and the Dominican Republic, with China, India, the Philippines, Vietnam, Indonesia, and Pakistan being leading sources of counterfeit medicines.  These statistics include COVID-19 test kits and personal protective equipment (PPE) "such as N-95 and equivalent masks, and sanitizers, detergents, and disinfectants" from China.  These problems are exacerbated by use of legitimate delivery services and online pharmacy sites, particularly those involved in consumer-to-consumer sales, according to the Report.  And these counterfeit items are being distributed by "legitimate express mail, international courier, and postal services to ship counterfeit goods in small consignments" rather than large cargo ships, making detection and enforcement more difficult.

The remedy again is cooperation, cajolery, and consultation:

The United States continues to urge trading partners to undertake more effective criminal and border enforcement against the manufacture, import, export, transit, and distribution of counterfeit goods.  The United States engages with its trading partners through bilateral consultations, trade agreements, and international organizations to help ensure that penalties, such as significant monetary fines and meaningful sentences of imprisonment, are available and applied to deter counterfeiting.  In addition, trading partners should ensure that competent authorities seize and destroy counterfeit goods, as well as the materials and implements used for their production, thereby removing them from the channels of commerce.  Permitting counterfeit goods and enabling materials to re-enter the channels of commerce after an enforcement action waste resources and compromise the global enforcement effort.

The Report identifies countries such as Columbia, Indonesia, Turkey, Pakistan, Uzbekistan, and Turkmenistan as having practices that fall short of adequate efforts to stem the flow of counterfeit goods across borders.

Online and broadcast piracy are also discussed, the Report noting that while "[t]he increased availability of broadband Internet connections around the world, combined with increasingly accessible and sophisticated mobile technology, has been a boon to the U.S. economy and trade," "technological developments have also made the Internet an extremely efficient vehicle for disseminating pirated content, thus competing unfairly with legitimate e-commerce and distribution services that copyright holders and online platforms use to deliver licensed content."  Sources of counterfeit optical disks mentioned in the Report include China, India, Mexico, and Pakistan, with Argentina, Bulgaria, Canada, Chile, China, Colombia, the Dominican Republic, India, Mexico, the Netherlands, Romania, Russia, Switzerland, Thailand, Ukraine, and Vietnam being identified as "hav[ing] high levels of online piracy and lack[ing] effective enforcement," estimated as costing the U.S. economy "at least $29.2 billion and as much as $71 billion in lost revenue each year."  A particular form of copyright piracy (particularly of music), termed "stream-ripping," is practiced (or ineffectively prevented) in Canada, India, Mexico, Russia, Switzerland, and Ukraine, the Report asserts.  Technology including illicit Internet Protocol Television (IPTV) services that "unlawfully retransmit telecommunications signals and channels containing copyrighted content through dedicated web portals and third-party applications that run on ISDs or legitimate devices" was used at high levels in Argentina, Brazil, Canada, Chile, China, Guatemala, Hong Kong, India, Indonesia, Iraq, Mexico, Singapore, Switzerland, Taiwan, Thailand, and Vietnam.  China, according to the Report, with Iraq is identified as being a source of satellite receivers having "preloaded" pirate IPTV applications. And signal theft is a problem in Brazil, Argentina, and Ukraine.  Also noted were the use of camcorders to produce expropriated contend, in Russia, India, and China, with impediments to counteracting such illicit activities found in Argentina, Brazil, Ecuador, India, Peru, and Russia (which don't effectively criminalize such activities), in contrast to laws now in effect in Canada, Japan, the Philippines, and Ukraine.

The significance of the problem was synopsized in the Report as follows:

In addition to the distribution of copies of newly released movies resulting from unauthorized camcording, other examples of online piracy that damage legitimate trade are found in virtually every country listed in the Report and include: the unauthorized retransmission of live sports programming online; the unauthorized cloning of cloud-based entertainment software, through reverse engineering or hacking, onto servers that allow users to play pirated content online, including pirated online games; and online distribution of software and devices that allow for the circumvention of technological protection measures, including game copiers and mod chips that allow users to play pirated games on physical consoles.  Piracy facilitated by online services presents unique enforcement challenges for right holders in countries where copyright laws have not been able to adapt or keep pace with these innovations in piracy.

Difficulties in trade secret protection has its own subsection of the Report.  The problems of adequately protecting trade secrets have arisen "in a wide variety of industry sectors, including information and communications technology, services, pharmaceuticals and medical devices, environmental technologies, and other manufacturing sectors, rely on the ability to protect and enforce their trade secrets and rights in proprietary information" and include theft of "business plans, internal market analyses, manufacturing methods, customer lists, and recipes" that "are often among a company's core business assets," according to the Report.  The Report states that trade secret protection (or lack of it) is a particular problem in Russia, China, and India.  Certain U.S. trade partners have made successful efforts in 2021 (including the EU, Chile, and Taiwan), and the USMCA also has "the most robust protection for trade secrets of any prior U.S. trade agreement" according to the Report.  The United States-China Economic and Trade Agreement (Phase One Agreement) has several trade secret commitments, according to the Report, including "expanding the scope of civil liability, covering acts such as electronic intrusions as trade secret theft, shifting the burden of producing evidence, making it easier to obtain preliminary injunctions to prevent use of stolen trade secrets, allowing criminal investigations without need to show actual losses, ensuring criminal enforcement for willful misappropriation."

Another subsection of the Report involved "forced" technology transfer, indigenous innovation, and preferences for indigenous IP.  These include the following activities, many of which involved governmental action:

• Requiring the transfer of technology as a condition for obtaining investment and regulatory approvals or otherwise securing access to a market or as a condition for allowing a company to continue to do business in the market;

• Directing state-owned enterprises in innovative sectors to seek non-commercial terms from their foreign business partners, including with respect to the acquisition and use or licensing of IP;

• Providing national firms with an unfair competitive advantage by failing to effectively enforce, or discouraging the enforcement of, U.S.-owned IP, including patents, trademarks, trade secrets, and copyright;

• Failing to take meaningful measures to prevent or to deter cyber intrusions and other unauthorized activities;

• Requiring use of, or providing preferences to, products or services that contain locally developed or owned IP, including with respect to government procurement;

• Manipulating the standards development process to create unfair advantages for national firms, including with respect to participation by foreign firms and the terms on which IP is licensed; and

• Requiring the submission of unnecessary or excessive confidential business information for regulatory approval purposes and failing to protect such information appropriately.

China and Indonesia are recognized for such practices.

As in other years, geographical indications (i.e., country or region of origin limitations primarily for wine and foodstuffs) are discussed, specifically in the EU.  This is particularly troubling for trademarks, the Report stating that "[t]he EU GI agenda remains highly concerning, because it significantly undermines the scope of trademarks held by U.S. producers and imposes barriers on market access for U.S.-made goods that rely on the use of common names, such as parmesan or feta."  These practices are particularly troublesome for medium-sized enterprises (MSME)s, according to the Report, because their trademarks are "among the most effective ways for producers and companies . . . to create value, to promote their goods and services, and to protect their brands."  Also a specific concern for the U.S. is that these GI practices produce a trade barrier to U.S. goods in the EU, particularly when GI protection is given to "common names" for a product.  The effects of these practices are exacerbated by the "significant deficit in food and agricultural trade" between the US and the EU (with Europe exporting $1 billion in cheese to the U.S. versus $3 million of U.S. cheese being imported by the EU).  The Report contains greater and more focused discussion of EU countries' GI practices, their "troubling aspects" and efforts to "seek to expand its harmful GI system within its territory and beyond."  While having little luck dissuading the EU from continuing and expanding its GI practices, the Report cites several bilateral agreements (with Argentina, Australia, Brazil, Canada, Chile, China, Ecuador, Indonesia, Japan, Kenya, Korea, Malaysia, Mexico, Morocco, New Zealand, Paraguay, the Philippines, Singapore, Tunisia, Uruguay, Vietnam, and others) that have a number of provisions aimed at curtailing some of the deleterious effects of GI protection.

With regard to pharmaceuticals and medical devices and market access for U.S. products, the Report contends that "[t]he COVID-19 pandemic has highlighted the importance of pharmaceutical, medical device, and other health-related innovation, as well as a lack of widespread, equitable distribution of these innovations," including the need for fighting the current as well as future pandemics.  The Report cites tariffs and other taxes levied by countries including Brazil, India, and Pakistan, as well as "unreasonable regulatory approval delays and non-transparent reimbursement policies" that "discourage the development and marketing of new drugs and other medical products."  The Report recites successful efforts in Canada, Mexico, China, Japan, India, and Indonesia to address issues of transparency and fairness in this sector.  On the other hand, the Report also notes that stakeholders have "expressed concerns" about practices in Australia, Brazil, Canada, China, Japan, Korea, New Zealand, Russia, and Turkey, "on issues related to pharmaceutical innovation and market access."

Trademark issues are noted in the Report for Brazil, China, Ecuador, Egypt, Spain, Turkmenistan, and Uzbekistan, for "impos[ing] unnecessary administrative and financial burdens on trademark owners and creat[ing] difficulty in the enforcement and maintenance of trademark rights," and in Algeria, China, Indonesia, Iraq, Jordan, and the United Arab Emirates, for requiring "burdensome formalities for filing documents such as intellectual property (IP) applications, registration maintenance, transfer of ownership submissions, and in opposition and cancellation proceedings."

In copyright, the Report cites "flawed or non-operational" copyright management organizations in several countries, despite efforts in countries including India, the UAE, and Ukraine to improve matters in this regard.

Software concerns included in the Report involve government use of unlicensed software (costing $46 billion globally in 2018 according to The Software Alliance).  This issue is particularly noted in Argentina, Brazil, China, Guatemala, Indonesia, Pakistan, Paraguay, Romania, Saudi Arabia, Tajikistan, Turkey, Turkmenistan, Uzbekistan, and Vietnam but the Report states that "[t]he United States continues to work with other governments to address government use of unlicensed software, particularly in countries that are modernizing their software systems or where there are infringement concerns."

As in prior years, the Report sets forth subsections on IP and the environment (stating that "[s]trong IP protection and enforcement are essential to promoting investment in innovation in the environmental sector" which "not only promotes economic growth and supports jobs, but also is critical to responding to environmental challenges) and IP and health.  This latter discussion is focused (perhaps inevitably) on the COVID pandemic.  Here, the "top priority" is "saving lives and ending the pandemic in the United States and around the world" (rather than protecting IP as it is throughout the other sections of the Report).  The Report again notes the Biden Administration's support for the WTO IP waiver and the USTR's involvement in negotiating an agreement.  In this regard this portion of the Report includes an extensive discussion of the provisions of the TRIPS agreement, the Doha Declaration, and Article 31 TRIPS regarding compulsory licenses.  The USTR through this Report states that the U.S. "strongly supports the WTO General Council Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health" (which permits member states to issue compulsory licenses to export pharmaceuticals to countries who cannot produce these drugs themselves).  Also included in the Report is a section devoted to implementation of the TRIPS Agreement with regard to the requirement for "certain minimum standards of IP protection and enforcement."

Finally, the Report notes that "notwithstanding provisions on the protection of undisclosed test or other data, a Party may take measures to protect public health in accordance with the Doha Declaration on the TRIPS Agreement and Public Health, or any waiver or amendment of the TRIPS Agreement to implement the Doha Declaration on the TRIPS Agreement and Public Health."  Further, the Report asserts that "the USTR will continue its close cooperation with relevant agencies to ensure that public health challenges are addressed and IP protection and enforcement are supported as one of various mechanisms to promote research and innovation."

The last but one subsection of Section I of the Report involve implementation of WTO agreement on TRIPS, relating to extending the "transition period" for least developed countries (LDCs) under Article 66.1 to July 1, 2034.  And the last section discusses dispute settlement and enforcement, specifically calling out "a range of unfair and harmful Chinese acts, policies, and practices related to technology transfer, intellectual property (IP), and innovation" and food-associated issues with the EU's GI regime.

Section II of the Report is a detailed, country-by-country discussion for each country on the Priority Watch List and the Watch List, relating to the activities (or lack thereof) of each country that results in placement of that country on these lists.

As it has for the past several years (and across otherwise very different Administrations), the U.S. Trade Representative Special 301 Report provides insights into both the concerns of U.S. IP rights holders and the Administration's intentions to work with other countries to increase protection for IP rights of U.S. IP rights holders.  While enunciating U.S. interests and policies consistent with earlier Reports, this Report is notable for addressing the trade elephant in the room, the WTO IP waiver and the Biden Administration's continued support for it.  And for those paying attention to the implications of this position (see "The Proposed WTO IP Waiver: Just What Good Can It Do? -- An Analysis"), a particularly chilling section of the Report bears repeating:

[N]otwithstanding provisions on the protection of undisclosed test or other data, a Party may take measures to protect public health in accordance with the Doha Declaration on the TRIPS Agreement and Public Health, or any waiver or amendment of the TRIPS Agreement to implement the Doha Declaration on the TRIPS Agreement and Public Health [emphasis added].

Taken at face value this indicates that "undisclosed test or other data" now explicitly at risk includes the type of trade secret, proprietary information disclosed to government regulatory agencies to obtain approval for drugs and vaccines.  The disclosure of this information would effectively destroy any trade secret value this information may have because, as shown for the mRNA vaccines it is the delivery vehicle and its component parts that are the IP.  While there may be sound policy or humanitarian reasons for deciding certain trade secrets must be disclosed for the greater good, it is particularly chilling to include this policy agenda in a discussion of the Doha Declaration, which is rightly seen as a successful effort to reduce if not eliminate the quid pro quo of providing IP protection in recalcitrant or at least IP hesitant states as the price of admission to the benefits of WTO membership.  In taking this position, the Biden Administration has gone much further than the "virtue signaling" some have been willing to see support for the WTO IP waiver to be, and bodes unwell for actual efforts to successfully address this pandemic and more importantly the next one.

For additional information regarding this and other related topics, please see:

• "U.S. Trade Representative Releases 2021 Special 301 Report," May 23, 2021
• "U.S. Trade Representative Releases 2020 Special 301 Report," May 10, 2020
• "U.S. Trade Representative Releases 2019 Special 301 Report," April 29, 2019
• "U.S. Trade Representative Releases 2018 Special 301 Report," April 29, 2018
• "U.S. Trade Representative Issues 2017 Special 301 Report," May 4, 2017
• "U.S. Trade Representative Issues 2016 Special 301 Report," May 19, 2016
• "U.S. Trade Representative Issues 2015 Special 301 Report," April 30, 2015
• "U.S. Trade Representative Issues 2014 Special 301 Report," May 19, 2014
• "U.S. Trade Representative Issues 2013 Special 301 Report," May 30, 2013
• "U.S. Trade Representative Issues 2012 Special 301 Report," May 1, 2012
• "U.S. Trade Representative Releases Special 301 Report on Global IPR," May 4, 2011
• "U.S. Trade Representative Releases Special 301 Report on Global IPR," May 19, 2010
• "New Administration, Same Result: U.S. Trade Representative's Section 301 Report," May 6, 2009
• "Congressmen Criticize U.S. Trade Representative over Special 301 Report," July 1, 2008
• "U.S. Continues Efforts to Protect Patent Rights Abroad," April 29, 2008

Comments

[skeptical]

Would t be overly pessimistic to rephrase the warning at the end of the write-up thusly:

a particularly chilling section of the Report bears repeating:

[N]otwithstanding provisions...

a Party may take measures to protect public health in accordance with the Doha Declaration on the TRIPS Agreement and Public Health, or any waiver or amendment of the TRIPS Agreement to implement the Doha Declaration on the TRIPS Agreement and Public Health [emphasis added].

Taken at face value this indicates that...

... a formal waiver is not even needed, but that takings of such Trade Secret type of information (the actual thrust of the IP waiver -- as contrasted with patents) can simply be done with no hint of penalty as long as the 'magic words' are uttered?

THIS administration continues down its "Equity" path - no matter what those who are in the profession of innovation protection may warn.