April 25, 2014

State of Intellectual Property

By Mark Elliot

2014 could be an incredible year for intellectual property (IP) rights and policy. Opportunities as well as challenges are percolating in nearly every corner of the globe. While businesses have sought to tear down the barriers to trade in the advent of modern transportation and the Internet, it is now time for governments to do the same, especially with respect to IP rights.

Ongoing trade agreements are a perfect opportunity for governments to agree to protect IP and support innovation. The Trans-Pacific Partnership (TPP) Agreement, which will link 12 diverse economies spanning three continents, is set to do just that. As you read this, U.S. trade negotiators are in Tokyo pushing hard to conclude the agreement, vowing to iron out all of sticking points by the end of the year. But with global trade relying on the standards that are set in the TPP, it is critical that the TPP isn’t just any agreement- it must be a 21st century agreement that is the model moving forward, including robust IP standards.

While we understand that much progress has been made on the IP chapter, a number of critical issues remain unresolved. Industry is strongly advocating for a TPP that holds true to U.S law in areas such as Internet Service Provider (ISP) liability and providing 12 years of regulatory data protection (RDP) for biologics.

With 74% of U.S. exports stemming from IP-intensive industries, a TPP with anything less than what has been enacted in recent Congressionally-approved free trade agreements, like KORUS, is simply counterproductive.

Every nation from Australia to the United States joined the TPP in an effort to create jobs and ensure the right rules are in place to foster innovation. This will only be achieved if the value and respect for patents, trademarks, copyrights, and trade secrets remain intact. This is also true as the European Union and the United States embark on efforts to negotiate a new trade agreement, and nations around the world work bilaterally to negotiate their own agreements.

However, upholding IP principles isn’t just for landmark trade agreements. Nations higher up on the income scale have the responsibility to lead by example. Many are doing so, as evidenced by the 2014 GIPC International IP Index, which saw the likes of the U.S., UK, France, Singapore, and Japan rise to the top in global IP rights. But Canada, America’s largest trading partner, noticeably lags behind its counterparts. Business is becoming deeply troubled that our friendly neighbor to the north is not-so-friendly on IP, especially in areas such as patent utility and border enforcement against counterfeiting and piracy. But Canada has the opportunity to fix these missteps by enacting CETA (a trade agreement with the EU) and Bill C-8, which would grant customs officials ex officio authority to seize counterfeit goods at the border.

Another important trading partner, India, is also taking baffling steps against the free market economy. Ranking dead last in the GIPC Index, a spate of judicial decisions against foreign patent holders and in addition to implementing disturbing industrial policies have seriously called into question the country’s ability—and frankly, willingness—to truly transition into a knowledge economy. With the election of a new government in a few weeks, India has a fresh opportunity to encourage domestic innovation and spur increases in foreign direct investment (FDI) by improving its IP climate.

Finally, it is only fair to practice the standards which we hold our trading partners to. Congress, led by House Judiciary Committee Chairman Bob Goodlatte will continue to forge ahead on copyright review, creating a necessary framework for updating IP laws to stay ahead of technological progress. Taking up its largest IP caseload yet, 2014 will also see major Supreme Court decisions that could impact the future of IP rights.  Furthermore, questions around patent litigation reform and IP enforcement resources also should gain the attention of our public officials, while IP creators and advocates should do more to educate the public and publicly elected on the integral nature IP has in our daily lives and the economy.

In the State of American Business Address back in January, U.S. Chamber of Commerce President and CEO Tom Donohue posed the question: “How do we maintain and build upon the economic momentum that is finally taking hold?” Only time will tell if we’re continuing on the right track, but until then we look forward to working with partners and stakeholders in pushing businesses and governments to tear down their IP walls.

Subscribe for updates from GIPC