On Friday, the U.S. Trade Representative announced its Section 301 investigation of China’s “acts, policies, and practices related to technology transfer, intellectual property, and innovation.” As part of the investigation, it is accepting comments from the public, which are due by September 28. The initiation of the investigation follows President Trump’s August 14 memo on intellectual property, which noted that “China’s conduct “may inhibit United States exports, deprive United States citizens of fair remuneration for their innovations, divert American jobs to workers in China, contribute to our trade deficit with China, and otherwise undermine American manufacturing, services, and innovation.”
The first part of this submission calls on USTR to adopt two interpretive principles in implementing the Special 301 statute. USTR should give proportional consideration to appropriate limitations and exceptions in evaluating foreign intellectual property systems, including by mentioning positive examples of limitations and exceptions in its “best practices” and “positive developments” identifications, and by listing countries on watch lists for egregious cases where a lack of limitations and exceptions stands as a barrier to US trade.
This week Secretary of State John Kerry and Secretary of Commerce Penny Pritzker will meet their Indian counterparts for the first meeting of the U.S.-India Strategic and Commercial Dialogue (S&CD).
The Republican and Democratic leaders of the Senate Finance Committee and the House Ways and Means Committee have written Kerry and Pritzker asking for continued U.S. pressure on intellectual property issues:
[Cross posted from Heesob’s IP Blog, Link] One of the controversies in implementing the KorUS FTA is whether biological products are subject to the patent linkage obligation of the KorUS FTA. The debate was provoked by the Korean government’s proposal which applies the patent linkage to biologics. But it is unclear if the FTA text imposes such an obligation.
Chapter 18 (IPRs) has no definition of pharmaceutical products for the patent linkage, only the provision of patent term extention defining a “new pharmaceutical product” as “a product that at least contains a new chemical entity that has not been previously approved as a pharmaceutical product in the territory of the Party.” See Article 18.8:5 FN21. In contrast, Chapter 5 (Pharmaceuticals and Medical Devices) makes clear that “pharmaceutical product or medical device means a pharmaceutical, biologic, medical device, or diagnostic product.”
Prepared statements from Chairman Orin Hatch, Ranking Minority Leader Wyden, and Ambassador Froman, and video of the full hearing are here. Actually, most of the hearing is on the video, but the committee edited out the protestors who disrupted the hearing. Democracy Now has the video and transcript of the protest here.
During Q&A, many of the Senators brought up enforcement of trade agreements as a very important area for USTR to focus its energies. Two Senators, in particular, indicated they wanted the U.S. to be been more active in trade disputes over intellectual property, through either FTA frameworks or bilateral measures:
In August 2014 a memorandum and supporting documents published on the website www.tppnocertification.org exposed how the United States uses a process called ‘certification’ to require other countries to implement the US’s interpretation of those other countries’ obligations under their free trade treaties.
Unless those countries’ comply, the US will not exchange the diplomatic notes that are necessary to bring the agreement into force. A number of examples showed how the US has used certification to intervene actively in other countries’ legislative processes in recent years.
On Friday, I joined law professors Srividhya Ragavan of University of Oklahoma and Brook Baker of Northeastern University Brook Baker in comments to the Indian government on its recently released “Draft Intellectual Property Policy.” Our overarching comment is that the proposed policy makes a categorical and critical mistake of promoting intellectual property as an end in itself rather than as a means for achieving social and economic progress through enhanced production of and access to the fruits of creativity and innovation. The heart of the comment states:
[Joint Letter from 12 American NGOs] We write as American organizations in advance of your trip to India this month to ask you to support India’s central role in providing high-quality, low-cost generic medicines—which are essential for health care around the world. Recent U.S. policy stances have sought to topple parts of India’s intellectual property regime that protect public health in order to advance the interests of multinational pharmaceutical corporations in longer, stronger, and broader exclusive patent and related monopoly rights. India’s laws fully comply with the WTO TRIPS Agreement. Millions around the world depend on affordable generic medicines that would disappear if India acceded to these proposals, including many beneficiaries of US-funded programs. Instead of using your trip to promote the narrow interests of one segment of the pharmaceutical industry, we ask you to support the interests of people who need affordable medicines, whether they live in the U.S., in India, in Africa or elsewhere. Our world is safer and healthier because of India’s pro-health stance and we ask you to say so publicly while you are there.
[Updated Jan 5] The U.S. International Trade Commission has released its report on Indian trade, investment and industrial policies, including but not limited to intellectual property rights. The full report is here and the the press release is here.
The report was based on “a survey of U.S. companies doing business in India; a quantitative analysis of the effects on the U.S. economy; and qualitative research, including a hearing and fieldwork, to produce case studies and examples that help illustrate effects of the policies on particular companies or industries.”
[Cross posted from TWN, Link] Several civil society organisations and individuals have expressed earnest concerns over the India-United States Joint Working Group on Intellectual Property.
A collective sign-on letter from more than 50 organisations, networks and individuals to India’s Prime Minister Shri Narendra Modi sets out the concerns over the decision to establish the Working Group that was announced in a US-India Joint Statement dated 30 September 2014. The letter urges the Prime Minister to approach the intellectual property (IP) issue with a “holistic perspective rather the narrow confines of trade and economic policy”.
[Cross posted from Equilibri.net] U.S. business interests and government officials are trying to sell the idea that heightened intellectual property protections in India are essential to foreign investment, innovation, and achievement of public health goals.
Instead, heightened intellectual property rights will make India consumers captive to Big Pharma’s extortionate pricing….
Unfortunately, the joint communiqué issued at the end of Prime Minister Modi’s US visit shows deference by the US and Indian governments to Big Pharma’s pressure…
[September 23, 2014] We, the undersigned organisations and individuals, understand that ahead of Prime Minister Narendra Modi’s scheduled visit to the United States, the government has decided to review India’s positions on intellectual property rights (IPRs). We are concerned about the timing that has been chosen to undertake a Ministry-level exercise on India’s IPR policy and apprehend the proposed exercise could become a hostage to the pressures of the US government and companies.