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What’s So Special about the Special 301?

What’s So Special about the Special 301?

By Patrick Kilbride

It is that time of year. The economic offices of some of the biggest U.S. trading partners begin to squirm in their seats as they watch comments pile high in response to the U.S. Trade Representative’s annual review of the state of intellectual property rights (IPR) protection and enforcement in trading partners around world, aka Special 301.

The Special 301 process in effect forces a stock-taking by industry and the U.S. Government of the challenges faced by intellectual property rights holders in the global economy.

While trading partners usually see the Special 301 Report as an American-made and government-wielded hammer, the U.S. Chamber of Commerce is taking a different tack: For 2015, we approached this process as an opportunity to demonstrate how effective and predictable IP infrastructures benefit economies of all sizes and levels of development.

The U.S. case is illustrative. More patents are filed in California’s Silicon Valley—the birthplace of the information-age—than in all other major international localities. Interestingly, one-half of all patents granted there go to immigrant inventors, global entrepreneurs who have come to the U.S. market so their work can thrive in an environment with strong intellectual property rights. Losing out are their home countries for whom the brain drain of some of their best talent—not to mention foreign direct investment from innovative industries—is a high price to pay for their failure to enforce against counterfeiting and piracy or to establish stable and substantial intellectual property regimes.

Accordingly, in its 2015 Special 301 comments to the U.S. Trade Representative, the U.S. Chamber has highlighted 18 countries that were chosen based on factors including the size of the market, the geo-political significance of the market, or specific intellectual property issues posed by that market. That is to say that although these countries each present particular challenges to U.S. intellectual property rights holders, they should not necessarily be taken to represent the worst performers globally.

With the guidance of the U.S. government and industry, we can together help build the next generation of net-exporters of intellectual property through bilateral cooperation, multilateral trade agreements, and informative exercises like the Special 301 Review, which identifies significant challenges intellectual property-intensive industries face in key markets.

This is a long way of saying to U.S. trading partners that we believe the Special 301 process ought to result in more collaboration than consternation.

U.S. Chamber’s Global IP Center 2015 Special 301 Submission