Patent Baristas

The White House issued an Executive Order establishing two Intellectual Property advisory committees, including the formation of an inter-agency Senior Intellectual Property Enforcement Advisory Committee. The senior advisory committee comprises cabinet level officials from State, Treasury, Justice, Agriculture, Commerce, Health and Human Services, Homeland Security, Office of Management and Budget, as well as, the United States Trade Representative.

The mission of the Senior Advisory Committee is to advise the Coordinator and facilitate the formation and implementation of each Joint Strategic Plan required every 3 years under title III of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (Public Law 110-403; the PRO-IP Act).

Both committees will be chaired by the Intellectual Property Enforcement Coordinator (IPEC), Ms. Victoria Espinel.  She was appointed by President Barack Obama and confirmed by the U.S. Senate to serve in this new position created by Congress in the PRO-IP Act.

The regular (nonsenior?) Intellectual Property Enforcement Advisory Committee (Enforcement Advisory Committee), is chaired by Espinel.  The Enforcement Advisory Committee is composed of designated persons in OMB, relevant units within the Department of Justice, including the Criminal Division, the Civil Division, and the FBI; the US PTO, the ITA, and other relevant units of the Department of Commerce; the Office of the United States Trade Representative; the Department of State, the Bureau of Economic, Energy, and Business Affairs, the United States Agency for International Development and the Bureau of International Narcotics and Law Enforcement Affairs; DHS, United States Customs and Border Protection, and United States Immigration and Customs Enforcement; the FDA;  the Department of Agriculture; the Department of the Treasury; Register of Copyrights; and such other executive branch departments, agencies, or offices as the President determines to be substantially involved in the efforts of the Federal Government to combat counterfeiting and infringement.

This reminds me of a coffee mug I saw once that read:  “Meetings.  The Practical Alternative to Work.”  Here’s hoping that this is not just a lot of busywork.  We look forward to seeing how the Administration will not only work to protect protect intellectual property rights but stimulate the development of new intellectual property.

Earlier this week, in an address here at the Chamber of Commerce, President Obama stated that as Americans, “we need to out-innovate, we need to out-educate, we need to out-build our competitors. We need an economy that’s based not on what we consume and borrow from other nations, but what we make and what we sell around the world.”

The Pro-IP Act accomplishes three basic goals (1) it coordinates the federal government’s resources to protect copyrights, patents, trademarks, trade secrets and computer data through the newly created position of intellectual property enforcement coordinator (IPEC); (2) it provides increased funding to the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI) and local law enforcement to investigate and prosecute IP theft; and (3) it increases civil and criminal penalties for stealing IP.

The Act gives courts discretion, at the start of a lawsuit, to order the impoundment of infringing materials, property used to make the infringing materials, and all records documenting the violations. To protect against disclosure of any confidential, proprietary, or privileged information contained in seized materials, the court must issue a protective order. The PRO-IP Act also expands existing prohibitions against importation of infringing items to now apply to exportation as well.

The PRO-IP Act significantly increases the remedies available to trademark owners in counterfeiting cases. The new range of statutory damages has been increased to $1,000 to $200,000 per counterfeit mark per type of goods sold, offered for sale or distributed. The class of persons potentially liable for treble damages and attorneys’ fees was expanded to include those who provide goods or services necessary to the commission of a violation with the intent that they be used to commit a violation.

The PRO-IP Act also expanded forfeiture provisions for criminal copyright infringement and trafficking in counterfeit goods or services. Property used in the commission of an offense, as well as property constituting or derived from proceeds obtained directly or indirectly as a result of the commission of an offense, may be ordered forfeited and destroyed. The court may also order that restitution be paid.

The PRO-IP Act prioritizes the protection of intellectual property with the creation of an Intellectual Property Enforcement Coordinator (IPEC), referred to colloquially as the “IP Czar.” Appointed by the President and confirmed by Congress, the IP Czar is charged with chairing an interagency enforcement Advisory Committee, coordinating and developing a Joint Strategic Plan against counterfeiting and infringement, and advising the President on domestic and international intellectual property enforcement policy.

The federal government will spend $429 million over the 2009-2013 period to carry out the mandates of the Act. The Act recognizes the need for additional FBI agents and DOJ attorneys to carry out its mission, and $25 million per year has been earmarked for grants to local law enforcement for the training, prevention, enforcement and prosecution of intellectual property theft and infringement crimes.