US IP Attachés Take Hard-Line Position On Overseas IP Enforcement

By Drew Clark for Intellectual Property Watch
WASHINGTON, DC – Nations ranging from Brazil to Brunei to Russia are failing to properly protect the intellectual property assets of US companies and others, and international organisations are not doing enough to stop it, seven IP attachés to the US Foreign and Commercial Service lamented recently.

Meanwhile, an industry group issued detailed recommendations for the incoming Obama administration’s changes to the US Patent and Trademark Office.

The problems in other nations extend from Brazil’s failure to issue patents for commercially significant inventions by US inventors, to an almost-complete piracy-based economy in Brunei, to an only-modest drop in the rate of Russian piracy from 65 percent to 58 percent, the attachés charged.

The attachés, speaking at an event organised by the US Chamber of Commerce and its recently beefed-up Global Intellectual Property Center (GIPC), blasted the record of familiar intellectual property trouble zones like Brunei, Thailand and Russia.

But the problems extend to the attitudes and omissions of major trading partners like Brazil, India and even well-developed European nations, said the attachés.

Dorian Mazurkevich, US IP attaché for Brazil, said that it was fair to characterise Brazil’s patent officers as follows: “They do not deny all patent applications; they do deny all the important ones.”

Struggling for a glimpse at a bright spot in an otherwise uniformly dismal Middle East picture, Minna Moezie, the former IP attaché in Egypt, said that her office had persuaded the country’s ministry of commerce to deny the grant of a distribution licence to a notorious software pirate.

Previously, the ministry had ignored evidence of piracy presented by the US company that owned the copyrights, and instead granted such a licence to the pirate.

Another common weakness within the countries represented were the extremely limited or non-existent protection of data for sensitive pharmaceutical information presented to government ministries, said Dominic Keating, the attaché for India, and Jennifer Ness, the attaché for Thailand and other southeast Asian nations.

“India has a history of being anti-IP in its views,” particularly toward the patent protection of pharmaceuticals, said Keating. Also noting a positive, he said there had some change in the attitudes toward IP within India.

US Takes Narrow View on Internationalisation of IP

Further complicating the picture for advocates of strong intellectual property protection is the proper role of multilateral international organisations such as the United Nations Conference on Trade and Development (UNCTAD), the United Nations Framework Convention on Climate Change, the World Health Organization (WHO) and the World Trade Organization (WTO), said the attachés.

When a Chamber of Commerce representative asked what role the chamber’s GIPC could play in combating the anti-IP trend through pro-IP research, Ness said that “the US and our industry is coming a little late to the table, because there has been years and years of investment by certain entities in the field” that oppose strong IP protection.

Even the World Intellectual Property Organization has fallen sway to anti-intellectual property trends, claimed Ness and Nancy Omelko, the IP attaché at the US mission in Geneva.

Referring to IP-related events at WIPO, Ness said, “It is very rare that the US is invited to participate in those kind of activities. I was specifically told by one person, who organised a certain number of activities for WIPO, that she simply won’t use US experts, because we are seen as being too aggressive” in taking pro-IP positions.

Omelko said that the group of 110 nations supporting discussion of proposed amendments on biodiversity and geographical indications to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) were being “misled” by opponents of the US position (which refuses to discuss the proposals in negotiations).

Under the biodiversity amendment supported for discussion by the 110 nations, “we are worried that they would deny patent applications” on the grounds that such inventors might expropriate national resources of genetically-stored knowledge, said Omelko. As a result, “we are looking for success stories, where we can hear about how a company went into a country, and used its genetically-stored knowledge, and the country was compensated.”

Others addressed the fact that US intellectual property diplomats can monitor the possible counter-intellectual property activities of organisations in Geneva. However, “none of these [UN] organisations are particularly transparent about what their staffs are doing” in the field outside of Geneva, said Ness.

For example, she said, WHO officials in Thailand had urged that country to seek compulsory licences of US pharmaceutical patents. And UNCTAD officials “suggested areas where Thailand could use competition law to push against ‘IP abuses’ that we would think of as perfectly legitimate uses of intellectual property rights.”

Instead, the debate is being driven by the anti-intellectual property agenda of groups like the South Centre and Oxfam, she said.

In October, US Chamber of Commerce President Tom Donohue announced that the GIPC, which had previously been focused on counterfeiters, would rise to the challenge of what the chamber characterised as a “second threat [from] a growing movement of anti-IP activists drawn from universities, foundations, non-governmental organisations (NGOs), ideologically driven interest groups, and even governments.”

These anti-IP activists, the chamber said, were annually spending tens of millions of dollars on an agenda to minimise intellectual property rights.

Brad Huther, senior advisor to the GIPC and the moderator of each of Friday’s panels, said that the IP attaché program initiated by the Bush administration had been a “mixed” success. Governments are beginning to accept bilateral negotiations on intellectual property rights, he said. And “we have seen minor encouraging signs that China is becoming more receptive” to IP enforcement.

Industry Recommendations for Obama’s USPTO Changes

In addition to the collective complaining about the limited enforcement of IP rights outside the United States, the 19 December roundtable featured a presentation on recommendations for reforming the US Patent and Trademark Office (USPTO) for the administration of President-elect Barack Obama.

The 37-page report is not a comprehensive guide to intellectual property policy. Rather, it is narrowly focused on improved alleged weaknesses in the USPTO. In addition to perennial recommendations like improving patent quality and halting the diversion of USPTO fees for expenditures by other government agencies, the report implicitly took aim at the outgoing patent chief.

Among the titles of the report’s recommendations were to “appoint a well-qualified undersecretary and director” – with a nine-point list of job qualifications – and also to “enhance organisational management” and “improve the retention of patent examiners.”

Drew Clark is the editor of BroadbandCensus.com, a free service offering information about local broadband speeds, prices, availability, reliability and competition. A Washington-based telecom, media and technology journalist, Clark may be reached at drew@drewclark.com.