USTR’s Special 301 Report

Each year, the US Trade Representative releases its “Special 301 report” – identifying countries that fail to provide “adequate and effective” intellectual property rights protection as well as “fair and equitable market access” to US persons relying upon IP rights.

The 2016 Report included substantial information regarding the Trans-Pacific Partnership (TPP) and commitments “to protect IP and to combat counterfeiting, piracy, and other infringement, including trade secret theft.”

Newly released 2017 Report does not mention the now-scrapped TPP – however President Trump is expected to conduct an aggressive set of bilateral trade negotiations.  His nominee for USTR – Robert Lighthizer – is moving through Senate Confirmation and will likely be confirmed within the next few weeks.  A holdup for Lighthizer is that he has previously lobbied the U.S. Government on behalf of foreign companies and groups in his role as a lawyer at Skadden.  This situation is common for almost any top level American trade negotiator working in the private sector.

The key news each year is the “Watch List”

Priority Watch List: Algeria  Argentina  Chile  China  India  Indonesia  Kuwait  Russia  Thailand  Ukraine  Venezuela

Regular Watch List: Barbados  Bolivia  Brazil  Bulgaria  Canada  Colombia  Costa Rica  Dominican Republic  Ecuador  Egypt  Greece  Guatemala  Jamaica  Lebanon  Mexico  Pakistan  Peru  Romania  Switzerland  Turkey  Turkmenistan  Uzbekistan  Vietnam

Regarding China, the USTR writes:

China must enact new measures and policies that provide stronger and more effective protection for IP; allow market access for IP-intensive products, services, and technologies; and enhance the effectiveness of civil enforcement in Chinese courts.

Read the report: 2017Special301ReportFINAL

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

25 thoughts on “USTR’s Special 301 Report

  1. China has long been that source of much IP hilarity.

    I have before me a Chinese ham radio sold as a Tytera, when there was already a market leader (also Chinese) whose market share they wanted to go after called Hytera. Tytera have reverted to their real name (TYT) after getting a cease and desist letter.

    TYT also made a Japanese ham radio for the company that designed it (Yaesu), and now it is no longer sold under that name, make and sell a ‘Chinese copy’ (no accident in the use of that term) under the TYT name as a model 9800 instead of an 8900.

    I think most of the difference does not come from any legal issues, but from many Chinese manufacturers blatant approach to copying and ‘not quite right’ trade names.

  2. From the report:

    “In virtually all countries identified in this Report, IP enforcement is lacking.”

    “U.S. innovators face challenges including restrictive patentability criteria, that undermine opportunities for export growth in countries such as Argentina, Canada, India, and Indonesia.”

    “In addition, the United States continues to have serious concerns about the lack of clarity in, and the impact of, utility requirements for patents imposed by Canadian courts. In these cases, courts have invalidated valuable patents held by U.S. pharmaceutical companies on utility grounds by interpreting the “promise” of the patent and finding that insufficient information has been provided in the application to substantiate that promise. These decisions, which have affected products that have been in the market and benefiting patients for years, have led to uncertainty for patent holders and applicants, including with respect to how to effectively meet this standard.”

    I think those same criticisms can be made of the current state of the US patent system, post-eBay, post-Mayo/Myriad/Alice and during the IPR regime of the AIA.

    So I have to ask, when is the USTR going to add the USA to the priority watch list? If it has no plans to do so, then why does it waste taxpayer money engaging in naked hypocrisy?

    1. My great hope is that one of our GATT trading-partners will sue us in the WTO on the grounds that Mayo / Myriad put us out of compliance with TRIPS. That might get Congress’ attention and move them to correct the SCotUS’s excesses.

      1. That would be a hoot.

    2. I’d also like to point out that Canada recently won their arbitration against Eli Lilly because, in part, the Eli Lilly knew of Canada’s utility requirement before they applied. More proof that the 301 Report is nothing but a worthless tool of corporate whining.

    3. Ahmen Brother.

  3. OT but John Duffy has a nice write up of yesterday’s oral arguments in Sandoz v. Amgen (regarding “the dance” for obtaining biosimilar marketing approval).

    link to scotusblog.com

    Of most interest, perhaps, is the Court’s apparent desire to let the administrative agency engage in rule-making to resolve the issues, rather than requiring the non-expert Supreme Court to perform that task.

    1. Reading comprehension fail.

  4. The inclusion of Argentina and Venezuela on the priority watch list made me laugh. I bet they are both quaking in their boots to know that they are on our “priority” watch list. Both Argentina and Venezuela (for very different reasons) do not want you to file in their patent offices. If people get the message that it is disadvantageous to file there, that is a feature—not a bug—as far as the Argentine and Venezuelan governments are concerned. If we really wanted to unsettle them, we could offer some sort of discount in our PTO for people who also file in Argentina/Venezuela, to encourage more filing in those offices. That might get their attention.

    I think, meanwhile, that it is a touch unfair to include Canada & Mexico on any sort of watch list. Both of those countries are doing about as much as anyone should reasonably expect of them vis-à-vis intellectual property.

    1. Yeah, Canada’s inclusion is a joke. It is included because certain industries whine a lot that they cannot get their follow-on patents. Canada’s official position is to give the Special 301 Report the middle finger.

      1. It is shocking, shocking I say, to think that politics are involved in any type of cross-sovereign “report.”

        😉

    2. Cuba is where the action is, baby.

    3. I wonder what landed Chile on the list. I have always found Chile to be one of the better Patent Offices with which to deal in South America. Is there something about Chilean litigation that is especially noxious?

  5. I haven’t prosecuted much in India lately. The last time was years ago and it was like throwing your patent application into a black hole. Has that changed?

  6. Wait a minute … just last week someone in the comments here was going on about how China was already the most awesomest place to enforce patents because the US is soooooo unfair. It’s impossible to know who to believe!

    LOL

    1. You do (or should) realize that such views are not mutually exclusive, given the (political) nature as is being discussed here of this report, eh?

      1. I do understand that in the rightwing fantasy universe where you live everything is “political.”

        But, in fact, the “viewpoint” that “everybody is filing in super awesome China because patents are so much easier to enforce there” is “mutually exclusive” to the “viewpoint” that China is lagging beside Argentina and Algeria.

        1. Nice strawman with the “right wing” comment – and, as typical, your comment is a huge miss.

          1. Nice strawman with the “right wing” comment

            Not really a “strawman.” More like an omnipresent fact that can’t be repeated often enough. But go ahead and deny systematic rightwing denialism as a tireless transparent propaganda tactic. That denial would be perfectly consistent with the behavior I’m pointing out (and let’s stop kidding around — it’s been “pointed out” for years, by pretty much everybody, and supported by mountains of evidence).

            1. It is a strawman – and a bad one at that since I am not “right wing,” nor do I advocate for that particular political viewpoint.

              But you already knew that, but decided to not let facts he in the way of your emotional rants.

            2. “SBut go ahead and deny systematic rightwing denialism as a tireless transparent propaganda tactic.”

              What is this “denialism” of?

              1. Not sure, but it is an “ISM,” and if Malcolm is accusing others of it, chances are outstanding that he himself is doing it.

              2. I think he means denialism as a tactic. Denail of any inconvenient fact or truth. Denial of global warming, denial of Russian election tampering, denial of chemical weapons used by A. H. … you know… denial

                1. Well that would definitely be in line with Malcolm’s number one meme of Accusing Others Of That Which Malcolm Does.

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