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The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Review Of WIPO Shipments To Iran, North Korea Issued; US Calls For New Safeguards

    Published on 11 September 2012 @ 10:19 pm

    By , Intellectual Property Watch

    An independent study of the World Intellectual Property Organization’s technical assistance to countries sanctioned by the United Nations was released today, and while it did not conclude whether WIPO violated UN protocol or whether there was any personal gain involved, it did raise questions as to how such behaviour could have been perpetuated from the early 2000s right up to this year.

    Separately today, the United States government made a sharp statement in a members-only WIPO meeting raising concerns about WIPO’s technical assistance activities and its viability as an organisation if it does not attain “an appropriate level of oversight, accountability and transparency.”

    The US called for new safeguards to ensure monthly, quarterly and annual reviews of its technical assistance involving sanctioned member states, and assurances that WIPO staff can speak without risk about past activities.

    The 77-page independent external review report, commissioned by the WIPO secretariat after concerns arose in late spring, was posted by WIPO to its website today, and is available here [pdf]. The review was carried out by Stig Edqvist of Sweden, and John P. Barker of the United States.

    According to a recent WIPO press release, “Edqvist is a detective superintendent with the Swedish National Bureau of Investigation, which he joined in 1981. From October 1997 to February 2012, he was the head of the investigation into the assassination of Swedish Prime Minister Olaf Palme. In February 2012, he was seconded by the Government of Sweden to European Union Rule of Law Mission (EULEX) in Pristina, Kosovo.”

    Barker, meanwhile, “is an attorney in the Washington, DC office of Arnold and Porter LLP. He is an expert on issues related to international sanctions and export controls, and served in the US Department of State under two presidents, where he held senior positions in the areas of non-proliferation and export controls.”

    The report details the shipments of computers and equipment to countries such as North Korea and Iran, but while it did not find any evidence of alleged ties to authorisation of the shipments by WIPO Director General Francis Gurry and possible buying of country votes for his election (the report authors received a direct denial from Gurry himself as reporters have in recent weeks), it also did not find a satisfactory answer as to how a UN agency could have operated thus.

    “Although we appreciate and acknowledge the dedication and underlying technical competence of the individuals involved and the need to support IP protection across all 185 Member States,” the report said, “we simply cannot fathom how WIPO could have convinced itself that most Member States would support the delivery of equipment to countries whose behavior was so egregious it forced the international community to impose embargoes, and where the deliveries, if initiated by the recipient countries, would violate a Member State’s national laws.”

    WIPO has been delivering information technology hardware to North Korea and Iran – who are members of the UN agency – since at least 2000 and 2001, as well as a host of other UN-sanctioned countries like Iraq, Libya and Sudan. But until a scandal broke over this practice this year, it had no procedure requiring such shipments be reviewed automatically.

    This technical assistance was apparently not known to most member states, and was never specifically mentioned in WIPO reports to members on its technical assistance.

    Prior to the establishment on 1 May 2012 of new procedures by the WIPO legal counsel, requiring a review for sanctions issues by the counsel, WIPO had no procedure requiring a separate review of programmes for countries subject to UN sanctions, the review said.

    From 2007-2012, WIPO made similar shipments of computers and computer equipment to other countries subject to UN sanctions, the review said, including: Côte d’Ivoire, Democratic Republic of the Congo, Iraq, Lebanon, Liberia, Libya and Sudan.

    It reviewed shipments on an ad hoc basis before the new procedure was instituted, handling shipments to sanctioned countries the same way it handled those to non-sanctioned countries.

    Whether WIPO violated UN sanctions is being left to a UN sanctions committee investigation. The report said it would not second-guess the UN committee. But it did say, “We note that some outside experts with serious national security, non-proliferation and legal credentials have concluded that some of the transfers may have violated the sanctions.”

    The report also noted the low level of involvement in the WIPO patent system of countries like North Korea, despite the assistance. And it said that “Much of the equipment [to DPRK and Iran] is standard office/desktop equipment, but some of the equipment is subject to a high level of encryption control under national laws. The DPRK and Iran could not have legally purchased most, if not all, of the U.S.-origin equipment due to restrictions imposed under U.S. national law.”

    For example, it said elsewhere in the report, North Korea (the Democratic Peoples’ Republic of Korea) “received as a part of the WIPO assistance program a SonicWall firewall and network security device that is subject to a very high level of U.S. licensing requirements for dual-use items. The equipment is subject to national security, anti-terrorism and encryption controls under U.S. law.”

    It further noted that WIPO has said as an international organisation, it is not bound by US national law.

    US Calls for Safeguards; Questions WIPO IP Strategies for Development

    Peter Mulrean, the newly arrived deputy permanent representative in the US mission in Geneva, gave a statement to the WIPO Program and Budget Committee meeting today, under the agenda item of the secretariat’s program performance report and audit and oversight division’s validation report.

    “[T]he United States wants to ensure that WIPO remains a viable organisation that continues to promote the protection of intellectual property throughout the world, not only for US companies and US individuals, but for all those whose creativity produces intellectual property of one kind or another,” Mulrean said. “But part of remaining a viable partner is ensuring that the resources provided by member states and fees collected from the businesses, institutions, and individuals of member states have an appropriate level of oversight, accountability, and transparency.”

    Mulrean said the US is “very concerned that WIPO conducted technical assistance projects and transferred US-developed technology to countries subject to UN Security Council sanctions without the knowledge of the United States, other member states, or the appropriate UN Security Council sanctions committees.” The US, he said, “is primarily concerned with three questions: what happened, how to correct it, and how to prevent it in the future.”

    The US is studying the independent review report released today, and said it looks forward to hearing how the organisation plans to implement its recommendations.

    The US also urged that the WIPO Internal Audit and Oversight Division be required to conduct “a monthly review of projects or other assistance intended for states subject to Security Council sanctions, and the External Auditor’s Office follow up with a quarterly review and an annual report to all member states at the WIPO Assembly.”

    In addition, WIPO should “follow through with the commitment to verify the end-use of the equipment already shipped to certain countries subject to UN Security Council resolutions.”

    But Mulrean praised WIPO’s work so far on its new whistleblower protection policy and urged the policy’s approval and implementation at the next meeting in October of the WIPO Coordination Committee, the executive body of member states.

    However, the US demanded that Director General Gurry “provide assurances, in writing, to all WIPO employees that they may discuss these transfers now being reviewed without fear of reprisal of any kind.”

    Some WIPO employees were called to testify at the House of Representatives Foreign Affairs Committee in July but were denied permission by Gurry on the grounds that they were not the officials with direct knowledge of the transfers.

    Meanwhile, another matter of “deep” concern was raised by another US official at the Program and Budget Committee meeting today.

    A new WIPO framework for designing national IP strategies for development is being implemented, including formation of an expert group on IP and health tasked with drafting a report, apparently without member state consent, the US official said.

    It appears to be related to a project at WIPO called National IP Strategies, which address innovation, science and technology, and research and development. The US said it is highly supportive of WIPO’s role in helping countries develop national IP strategies.

    Such a process would be highly irregular, the official said. The experts are being remunerated for their work without approval. The US asked that further work be retained by WIPO until the project can be approved by member states.

    Recommendations of the External Review Report

    The independent external review report included a set of recommendations, including to:

    - Recognize the obligations imposed by other UN organizations, particularly the relevant sanctions committees.

    - Implement sanctions compliance in a systematic manner and throughout the WIPO functions.

    - Undertake due deference to member states’ national laws for the transfer of equipment and technology in appropriate circumstances.

    - Provide training in export compliance.

    - Consider structural changes, including appointment of a chief compliance officer and export compliance official.

    -Enhance end-use and end-user checks.

    -Require contractors to obtain any necessary export licenses and confirm that there are no country-of-origin restrictions or restrictions imposed by the manufacturers for delivery to countries.

    - Ensure clear lines of responsibility with implementing agencies.

    - Enhance transparency and reporting.

    - Require destruction or return of equipment upon completion of use in cases where the equipment could not be purchased by the country directly.

    - Seek a uniform view on the application of member states’ export control restrictions across UN agencies.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. Golf says:

      IP watch or congress could also investigate on 2005-20010 IT security breaches at WIPO. These breaches were all hidden by manipulated investigations, to protect WIPO’s reputation and people involved in the breaches.

    2. WIPO solicits nominations for 2014 election of Director General | WIPO Monitor says:

      […] have surrounded allegations that WIPO exported US technology to Iran and North Korea. There has also been concern raised regarding the addition of new external offices for WIPO which […]

    3. US Congresswoman known for internet leadership opposes WIPO head re-election | WIPO Monitor says:

      […] US Congresswoman Zoe Lofgren has released a bipartisan letter calling on US Secretary of State John Kerry to oppose the re-election of WIPO Director General Francis Gurry over concerns relating to the WIPO export of computers to Iran and North Korea. […]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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