FY 2017-2019 Joint Strategic Plan on Intellectual Property Enforcement

On Monday, December 12, 2016, the White House’s Office of the Intellectual Property Enforcement Coordinator (IPEC) released a joint strategic plan for intellectual property enforcement, entitled “Supporting Innovation, Creativity, & Enterprise: Charting a Path Ahead.” The coordinated approach, mandated by Title III of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act), constitutes a three-year national plan on the enforcement of laws protecting copyright, patents, trademarks, trade secrets, and other forms of intellectual property. The plan is divided into four main sections, each highlighting one of the overarching goals to improve interagency IP policy enforcement. In particular, and as identified by IPEC Danny Marti in his White House statement, these goals include: (1) enhancing national understanding of the economic and social impacts flowing from misappropriation of trade secrets and the infringement of intellectual property rights, (2) promoting a safe and secure Internet by minimizing counterfeiting and IP-infringing activity online, (3) securing and facilitating lawful trade, and (4) enhancing domestic strategies and global collaboration in support of effective IP enforcement.

The Joint Strategic Plan was prepared by the U.S. Interagency Strategic Planning Committees on IP Enforcement, which is chaired by IPEC and comprised of various federal departments, including the Department of Justice, the Department of Homeland Security, the Department of Health and Human Services, the Department of Agriculture, the Office of Management and Budget, and the Copyright Office. As set forth in the PRO-IP Act, the Plan was also developed by consulting with “companies, industry associations, labor unions, and other interested groups” and “private sector experts in intellectual property enforcement.” The Plan emphasizes the need to identify “structural weaknesses,” “systematic flaws,” and other “impediments” to an effective and robust intellectual property regime. It “represents a ‘call for action’ for all nations- as well as international organizations, industry, educational institutions, and consumer protection and public interest groups- to provide forward-thinking leadership and a collaborative approach to combatting illicit IP-based activities.” Acknowledging that these threats are not limited domestically, to a single governmental agency, or commercial sector, the Plan underscores the importance of voluntary initiatives and global collaboration in an effort to combat these challenges.

The Joint Strategic Plan begins by providing an overview on how intellectual property serves as a driving force behind U.S. economic growth and development. According to the Department of Commerce, for instance, IP-intensive industries added $6.6 trillion in value, or more than 38% of the U.S. gross domestic product. Section 1 outlines the scope and magnitude of illicit exploitation of intellectual property in the global marketplace, analyzing how such activity undermines national interests. In particular, section 1 highlights the threats to principles of fair trade, consumer health and safety, the environment, and domestic and international security. Section 2 then discusses IP-infringing activity in the digital realm (online), focusing on practices and policies that disrupt illicit financing models, such as a “follow-the-money” approach. To that end, the Plan supports efforts to enhance voluntary payment processor initiatives that increase transparency in operation and “make appropriately generalized and anonymized data publicly available … to permit study and analysis of illicit activity intercepted on their networks.” Section 3 then discusses ways to improve domestic and international security for facilitating legitimate cross-border trade. The Plan recommends, for example, an “all-threats” approach to cargo screening, additional investment in shipment tracking and anti-counterfeiting technology, and a coordinated effort between public and private sectors. Lastly, section 4 examines opportunities to improve governmental frameworks and policies that are critical to promoting effective IP enforcement both domestically and abroad. The Plan calls for continued data collection, research, and review of both domestic and international stakeholders to identify the “precise nature and dimensions of the various challenges in IP enforcement.”

For those interested in patent-specific dialogue, section 4 is the most significant. A discussion of U.S. patent law begins on page 134 of the 163-page report, touting the importance of efficient and predictable patent protection for an innovative and competitive economy. This focus undoubtedly stems from the miasma of uncertainty cast over patent eligibility for software and business method inventions following the 2014 Supreme Court decision in Alice Corp. v. CLS Bank. It is also influenced by the creation of the Patent Trial and Appeal Board (PTAB), an administrative law body dedicated to reviewing post-issuance challenges to patentability. Notoriously dubbed the death squad for patents, the PTAB continues to introduce new uncertainty into otherwise established patent rights with its high rate of patent invalidation. The Plan acknowledges the need to further develop the rules and procedures of the PTAB to produce a “more effective and fair alternative to the costly and arduous litigation procedures of traditional courts.”  The Plan also sets forth a number of actions to improve predictability of patent rights. These actions vow to:

• Action No. 4.7: Continue implementation of the Enhanced Patent Quality Initiative;
• Action No. 4.8: Promote continued collaboration between right holders and the USPTO to benchmark post grant proceedings;
• Action No. 4.9: Promote continued training and dialogue regarding emerging technologies on the patent system; and
• Action No. 4.10: Provide expert technical assistance to Congress on any necessary patent reform efforts.

The Plan also recognizes the contribution of industrial design to a strong economy, attributing graphical user interfaces, icons, transition images, and animated images for the success of many consumer products. To that end, the Plan proposes to “monitor the use of the design patent system to protect designs embodied in or applied to technologies.”

Released just weeks before newly-elected President Donald Trump takes office, the Joint Strategic Plan will continue to guide national IP enforcement policy over the next three years despite the transition of political power. Federal departments are required to submit an annual report to Congress pursuant Section 404 of the PRO- IP Act, detailing the efforts of implementation during the previous fiscal year. To read the 2017-2019 US Joint Strategic Plan on Intellectual Property Enforcement in its entirety, click on the link provided here.