Patent Baristas

Senate Finance Committee Chairman Max Baucus (D-MT) and Sen. Orrin Hatch (R-Utah) introduced the International Intellectual Property Protection and Enforcement Act of 2008, legislation meant to crack down on the theft of U.S. intellectual property around the world.

The bill would compel the U.S. Trade Representative to develop action plans for countries on the piracy “Priority Watch List,” and empower the president with enforcement tools if corrective actions are not taken.  It would also ensure the placement of officials at foreign embassies tasked with enforcing American IP rights.

While the bill seems directed towards protecting big content provides, press release specifically mentions “the piracy of American films, the counterfeiting of American-designed products and other violations,” the bill would cover U.S. copyrights, trademarks, patents, and even unpatented product designs.

The International Intellectual Property Protection and Enforcement Act of 2008 requires the United States Trade Representative to spur countries that violate U.S. intellectual property rights to take specific steps to stop IP violations, provides funds to increase USTR’s capability to work with developing countries to improve IP protection and enforcement, and gives the president powerful enforcement tools to deal with countries that refuse to fight widespread theft of U.S. intellectual property.

Provisions of the Act include:

Action Plans. The bill requires the United States Trade Representative (USTR) to develop an action plan for each foreign country that has remained on USTR’s “Priority Watch List” of intellectual property deficient countries for at least one year. The action plan must list the legislative, enforcement, or other actions that the foreign country must take in order to achieve adequate and effective protection of intellectual property rights, and fair and equitable market access for U.S. companies that rely on intellectual property protection.

Enforcement Actions. If a foreign country has not complied with its action plan within one year, the bill authorizes the President to take various enforcement actions against the country. These actions include (1) prohibiting federal government procurement from the foreign country; (2) prohibiting new financing by the Overseas Private Investment Corporation and the Export-Import Bank of the United States with respect to projects in, or exports to, the foreign country; and (3) withdrawing any preferential treatment for which the foreign country qualifies under the Generalized System of Preferences or other U.S. preference programs.

Developing Country Assistance. The bill authorizes appropriations to USTR to assist developing countries in complying with their action plans. Such assistance may include capacity building, activities designed to increase awareness of intellectual property rights, and training for officials responsible for enforcing intellectual property rights in the developing country.

Congressional Report. The bill requires USTR to include, in its annual “Special 301” report, a description of the action plan developed for each country and the actions taken by each country pursuant to that plan.

Intellectual Property Officials. The bill requires the President to ensure that intellectual property officials are placed in the U.S. embassy of each foreign country that has a commercially significant relationship with the United States. The official will (1) serve as a liaison between the United States and the foreign country on matters relating to intellectual property protection and enforcement; and (2) gather and provide information requested by USTR for purposes of developing or determining compliance with the intellectual property action plans.

Expect this to go through harsh revisions.