An Overview of the USTR’s 2016 Special 301 Report on the State of IPR in Algeria and Kuwait

The BRIC Wall Blog continues to examine the Office of the United States Trade Representative (USTR) 2016 Special 301 Report (Report) released on April 12, 2016. The Report reviewed the state of intellectual property rights (IPR) protection and enforcement in U.S. trading partners around the world.   After extensive research and analysis, the Report identified Algeria and Kuwait as two of eleven (11) countries on the priority watch list for 2016.

Although the Report commends Algeria for its ongoing efforts to promote awareness of the importance of IPR, the Report notes that IPR enforcement still requires significant improvement.  Specifically, Algeria continues to struggle with enforcement of existing anti-piracy statues, including the use of unlicensed software, and enforcement of penalties for patent infringement.

The Report also indicates that Algeria continues to struggle in the area of pharmaceutical and medical products.  Specifically, Algeria lacks an effective system for protecting against unfair commercial use and unauthorized disclosure of data generated to obtain marketing approval for pharmaceutical products.  Furthermore, Algeria continues to ban imported pharmaceutical products and medical devices in favor of local products, which presents a significant barrier to free market access and is the primary reason that Algeria remains on the Priority Watch List in 2016.  The Report urges Algeria to remove this market access barrier and that the United States looks forward to continuing its engagement with Algeria in the future.

The Report also placed Kuwait on the Priority Watch List for 2016 as a result of its continued struggle with copyright and trademark infringement and lack of adequate copyright legislation.  In 2014, Kuwait was elevated from the Watch List following an out of cycle review (OCR) which revealed that Kuwait had failed to introduce a copyright law consistent with international standards and had not resumed effective enforcement against copyright and trademark infringement.  Although Kuwaiti officials initially took steps to improve enforcement following the announcement of the 2014 OCR, the Report indicates that effective enforcement actions against copyright and trademark infringement have significantly decreased since 2015.  The Report urges Kuwait to correct these deficiencies and indicates that the United States stands ready to work with Kuwait towards resolving these important issues.

This post was written by Lisa Mueller and Rikki Hullinger.

 

 

An Overview of the USTR’s 2016 Special 301 Report on the State of IPR in China

In this week’s post, the BRIC Wall Blog continues to examine the Office of the United States Trade Representative (USTR) 2016 Special 301 report (Report) reviewing the state of intellectual property rights (IPR) protection and enforcement in U.S. trading partners around the world. The Report details the results of extensive research and analysis, which led to placing eleven countries on the priority watch list and twenty-three on the watch list. China remains on the Priority Watch List, as the environment for protection and enforcement of IPR in China continues to be complex and contradictory. Surveys continue to indicate that many businesses chose not to offer their technology, goods, services, or investments in China. The choice was based on the obstacles that restrict foreign firms’ ability to fully participate in standards setting, the unnecessary introduction of inapposite competition concepts into intellectual property laws, and acute challenges in protecting and incentivizing the creation of pharmaceutical inventions and test data.

In the past year, China’s leadership developed draft reform measures on a range of subjects including copyrights, patents, trade secrets, drug review and approvals, Anti-Monopoly Law enforcement as it relates to intellectual property, and regulations on inventor remuneration. The State Council established the Office of the National Leading Group on the Fight Against IPR Infringement and Counterfeiting, currently chaired by Vice Premier Wang Yang. The group extended its online enforcement campaign in 2015 and has played a positive role in China’s IPR. Further, courts have been established in Beijing, Shanghai, and Guangzhou to study the merits of specialized intellectual property courts over a three year period.

Despite the reform measures, it is difficult to prevent the misappropriation of trade secrets due to deficiencies in China’s primary trade secrets law (found in the Anti Unfair Competition Law, or AUCL) that limit the law’s application; unresolved weaknesses in China’s civil enforcement system including limited injunctive relief and low damage awards; and difficulties in pursuing criminal enforcement, including the need to prove actual damages caused by the theft of trade secrets. In the Report, the U.S. urges China to consider drafting a stand-alone trade secrets law, which would provide an opportunity to address a broader range of concerns than possible as part of a reform to the AUCL.

The Report further indicates that the disclosure of critical intellectual property for foreign information and communication technology (ICT) products and services continues to be required as a condition of access to the Chinese market. The justification for this disclosure is purportedly for security measures. These measures were suspended in 2015, in response to strenuous objections from the U.S., other foreign governments, and the private sector. Furthermore, China’s draft counterterrorism law included provisions that appeared to require telecommunications business operators and Internet service providers to disclose critical proprietary intellectual property to regulators. Objection by the U.S. and others led China to remove some of the troubling aspects in the final version of the law. Similar concerns have arisen in China’s National Security Law and draft insurance sector regulations. The Report states that it is critical that China adhere to its commitments and not simply invoke security concerns in order to require the disclosure of critical intellectual property.

The Report also highlights the concern that certain government measures, policies, and practices that are purportedly intended to hasten China’s development into an innovative economy, instead put foreign right holders at a disadvantage. These measures appear to include the requirement that certain IPRs be developed in China or be owned or licensed to a Chinese party. Through engagement with the U.S., China has committed that:

  1. Technology transfer and technological cooperation shall be decided by businesses independently and will not be used by the Chinese government as a precondition for market access;
  2. It must treat intellectual property rights owned or developed in other countries the same as domestically owned or developed intellectual property rights; and
  3. Enterprises are free to base technology transfer decisions on business and market considerations, and are free to independently negotiate and decide whether and under what circumstances to assign or license intellectual property rights to affiliated or unaffiliated enterprises.

The Report states that the U.S. will continue to push back against existing measures that distort technology transfer.

Additionally, the Report states that online piracy and counterfeiting in China’s massive e-commerce continues to be a wide-spread problem, which results in great losses for U.S. right holders involved in the distribution of a wide array of trademarked products, as well as legitimate music, motion pictures, books and journals, video games, and software. The piracy extends to unauthorized access or copies of, scientific, technical, and medical publications as well. China has the largest internet user base in the world, with the annual sales of goods on the Internet projected at nearly half a trillion U.S. dollars. China’s State Administration for Industry and Commerce (SAIC) reported that more than 40 percent of goods that SAIC purchased online during a 2014 survey were “not genuine”. Furthermore, the USTR’s 2015 Notorious Markets List reported that China is the manufacturing hub of counterfeit products sold illicitly around the world. The effects of these counterfeit goods go beyond lost sales volume and harm to the reputations of U.S. trademark owners, as counterfeit goods potentially threaten the health and safety of consumers around the world. A positive development in 2015 was the reported removal of over 2.2 million unlicensed works at the request of the National Copyright Administration of China. In the Report, the U.S. urges China to accelerate the development of its E-Commerce Law and to ensure that it addresses online piracy and counterfeiting, while providing appropriate safeguards to Internet service providers.

Regarding patent related measures and policies, according to the Report, IPR and technological standards in China heighten U.S. concerns regarding a range of Chinese government policies and practices. Membership or participation rights to foreign parties have been denied by China, which prevent foreign parties from participating in the standards setting process. In addition, there is also the concern that patent holders may be forced to contribute proprietary technologies to standards (and to license them to implementers) against their will. The U.S. secured commitments in the 2015 U.S.-China Joint Commission on Commerce and Trade in which China stated that:

  1. It welcomed the participation of U.S.-invested firms in the development of national recommendatory and social organization standards in China on a non-discriminatory basis; and
  2. Licensing commitments for patents in voluntary standards should be made voluntarily and without government involvement in negotiations over such commitments, except as otherwise provided by legally binding measures.

The Report also disclosed the state of Anti-Monopoly Law (AML) enforcement. Specifically, it stated that Chinese competition authorities may target for investigation those foreign firms that hold IPRs that may be essential to the implementation of certain technological standards. In this regard, the U.S. has secured a number of commitments from China, including that:

  1. The objective of a competition policy is to promote consumer welfare and economic efficiency rather than promote individual competitors or industries;
  2. Enforcement of competition laws should be fair, objective, transparent, and non-discriminatory; and
  3. China’s AML enforcement agencies are to be free from intervention from other agencies in enforcement proceedings.

The Report further states that China also committed to attaching great importance to maintaining coherence in the rules related to IPR in the context of the AML, based on the pro-competitive effects of intellectual property licensing.

With regards to pharmaceutical patents, the Report states that China was once generally consistent in its review of patent applications with the U.S. and leading patent offices in other countries. However, an applicant’s ability to provide supplemental data in support of an application was severely restricted after revisions were made to the interpretations of the guidelines of the Chinese Patent Office. The revisions have resulted in the denial of patents and invalidation of patents that the U.S. and other jurisdictions have granted patent protection to in similar cases. According to the Report, China subsequently agreed to work with the U.S. to follow up on implementation of a revision of its policy on data supplementation in late 2013; however, industry generally reports only partial progress as a result of the change. Furthermore, the U.S. has concerns about the extent to which China provides effective protection against unfair commercial use of, unauthorized disclosure of, and reliance on, undisclosed data generated to obtain marketing approval for pharmaceutical products.

According to the Report, some of China’s proposals for reform appear to contain provisions that would provide regulatory incentives for companies to shift manufacturing to China or participate in selected national projects and programs. Proposals such as these may have lasting negative effects on promoting global innovation and would appear more consistent with forced technology transfer industrial policies.

Although there have been promising developments to IPR protection and enforcement in China, including repeated affirmation of the importance of intellectual property by China’s leadership, an ongoing intellectual property legal and regulatory reform effort, and encouraging developments in individual cases in China’s courts, the Report indicates that substantial issues remain.

In the next post, the BRIC Wall Blog will examine in detail the Report’s findings on the state of IPR in Algeria and Kuwait.

This post was written by Lisa Mueller and Kate Merath of Michael Best.

The much awaited Indian National IPR Policy has arrived!

On May 13, 2016, the much awaited National Intellectual Property Rights (IPR) Policy was released by the Indian Government. The goal is to create awareness about the importance of IPRs as a marketable financial assets and economic tools.  The twenty-eight page policy lays down seven objectives and the necessary steps to be undertaken by the relevant Ministries/departments.  A copy of the policy is attached here:  National_IPR_Policy_12.05.2016.  A brief summary of the objects of the policy are provided below.  A more in-depth analysis of each of these objectives will be provided in subsequent BRIC Wall blog posts.

What are the main objectives of the new National IPR Policy?

  1. To create public awareness on the economic, social and cultural benefits of IPRs among all sections of society

A nationwide promotion program is proposed for the purpose of improving the awareness about the benefits of IPRs and their value to rights holders and the public, including the less visible IP generators and holders.  The goal is the creation of an atmosphere where creativity and innovation are encouraged in private and public sectors, research and development (R&D) centers, industry and academia thus leading to the generation of protectable IP that would ultimately be commercialized.  “Creative India; Innovative India” is the proposed slogan for this program.

  1. To stimulate the generation of IPRs

There is a need in India to tap the talent pool contained in R&D institutions, enterprises, universities and technical institutes to stimulate the creation of IP assets. The policy proposes a comprehensive IP audit or base line survey across these sectors to allow for the formulation and implementation of targeted programs.  Focus will be placed on facilitating researchers and innovators in areas of national priority, and initiating the steps necessary to ensure that the benefits of the IPR regime reach all inventors, especially micro, small and medium enterprises (MSMEs), start-ups and grass root innovators.

  1. To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest

While India has an effective and TRIPs compliant IPR regime, it is important for it to protect its rich traditional medicinal knowledge from misappropriation.  One suggestion proposed by the policy is to undertake a review of India’s existing intellectual property laws, in consultation with the relevant stakeholders, and update and revise these laws to remove any anomalies and/or inconsistencies, if needed.  This suggestion is important as it shows the willingness of the Indian Government to take a fresh look at India’s existing laws and improve upon them for the better.

  1. To modernize and strengthen service-oriented IPR administration

The administration of the Copyright Act, 1957 and the Semiconductor Integrated Circuits Layout-Design Act, 2000 will now be brought under the aegis of the ‘Department of Intellectual Policy and Promotion’ (DIPP).  Additionally, a cell (namely, a dedicated team/department) for IPR Promotion and Management (CIPAM) is proposed to be created.  According to the policy, it is believed that this will facilitate more effective and synergetic working between various IP offices, as well as the promotion, creation and commercialization of IP assets. The policy also envisages promoting awareness about patents to IPR officials at all levels regarding the objects and reasons behind India’s IPR laws and international obligations.

  1. Obtaining value for IPRs through commercialization

The policy envisages a concerted effort for capitalizing India’s existing IP assets by creating a public platform to connect creators and innovators to potential users, buyers and funding institutions.

  1. To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements

The policy envisages various measures to strengthen the enforcement of IPRs such as sensitizing inventors and creators of IP on the available measures for protecting and enforcing their rights, a need to build the capacity of enforcement agencies at various levels, the strengthening of IPR cells in State police forces, devising measures to check counterfeiting and piracy, conducting regular IPR workshops, etc.  The policy also emphasizes the need to adjudicate IPR disputes through specialized commercial courts and to explore alternate dispute resolution mechanisms.

  1. To strengthen and expand human resources, institutions and capacities for teaching, training, research and building skills in IPRs

The policy notes that in order to harness the full potential of IPRs for India’s economic growth, it is essential to develop and increase the pool of IPR professionals and experts in all spheres such as policy and law, strategy development, administration and enforcement.  It is believed that developing such a reservoir of experts will facilitate the generation of IP assets in India and their utilization towards commercial development.

This post was written by Lisa Mueller with ‘IP Alerts’ shared by Arun Kumar of K & S Partners.

 

IPO’s patent to Gilead’s Sovaldi challenged at Delhi High Court

On May 9, 2016, the Indian Patent Office (IPO) granted a patent to Gilead Pharmasset, LLC (Gilead) for its blockbuster anti Hepatitis-C virus (HCV) drug, sofobuvir  (known commercially as “Solvaldi”) holding that the invention was novel, inventive and did not fall within the preclusion of Section 3(d) of the Indian Patents Act. The 58 page order rejected six pre-grant oppositions that had been filed and ordered the granting of the application.

In 2014, NATCO Pharma, the Initiative for Medicines, Access & Knowledge (I-MAK) and DELHI Network of Positive People (DNP), BDR Pharma, Sankalp Pharmaceuticals Pvt Ltd., Optimus Group and India Cores (collectively, the “pre-grant opponents”) filed pre-grant oppositions against Gilead’s application on various grounds.  In early 2015, the IPO, without holding any opposition proceedings, issued an order (the 2015 order), rejecting the application for falling under the preclusion of Section 3(d) of the Indian Patents Act, despite finding the claims to be novel and inventive. However, the 2015 order relied heavily on the interpretation given by Indian Supreme Court in Novartis vs. GOI, CA No.2706-2726/2013 para 180-192, that the term “efficacy” in section 3(d) meant “therapeutic efficacy”. The Controller also stated in his order that Gilead showed only “cytotoxicity data to prove the difference in properties which is insufficient to prove significant increase in the therapeutic efficacy. The data does not show any clinical trials to prove the improvement in the therapeutic efficacy”.  The Controller also distinguished any relevance this application had with Roche vs. Cipla stating, “The Judgement of Honourable Delhi Court in case of Roche vs. Cipla does not apply on this case as Erlotinib and Gefitinib were different in groups by substitution of a methyl groups with ethnyl group at the third meta position whereas in the present case the difference lies only in the orientation of fluoro group of compound XI of D1.  Finally, by rejecting the application, the Controller avoided initiating any pre-grant opposition.  As a result, Gilead challenged the 2015 order before the Delhi High Court, which remanded the matter to the IPO.  A new Controller was assigned the task of reinitiating the proceedings.  In February 2016, the IPO began hearing the oppositions in an inter parte manner amidst demonstrations by activists and non-government organizations (NGOs) supporting patient rights and access to medicine.

The key arguments presented by the pre-grant opponents were: (a) lack of novelty, (b) lack of inventive step and (c) non-patentability in view of section 3(d). Considering the arguments of all the parties, the Controller in a very detailed technical analysis, held that the invention involved both novelty as well as inventive step and overcame the patentability barrier set by section 3(d).  Specifically, he observed that with respect to novelty, the prior art neither exemplified nor provided an enabling disclosure with respect to the claimed compound. Therefore, an arbitrary selection without the use of hindsight was impossible.  As a result, he held that the claimed compounds were not anticipated by the cited prior art.

Regarding inventive step, the Controller agreed with Gilead that the cited prior art documents failed to provide a clear teaching for a person skilled in the art to arrive at a substitution pattern as recited in the claims.  Moreover, the extent of unpredictability in the synthesis of the nucleoside compounds of this class was well established by the cited prior art documents. Therefore, a skilled person aware of the complexity of the structure activity relationship involving the anti-HCV activity of ribonucleosides and the unpredictability of arriving at the desired result by specific substitution, would simply not be motivated to arrive at the claimed invention in view of the teaching of the prior art. In fact, it was noted that, substantial experimentation would be required to obtain the claimed invention.

With regard to unpatentability under section 3(d), the Controller held that it was difficult to accept that claimed compounds were derivatives of known compounds when such compounds having anti-HCV activity were simply not exemplified in any of the cited prior art documents.  Specifically, the Controller noted that the claimed compounds were not polymorphs, isomers, salts, etc. of a known compound.   Moreover, relying on the decision of the Delhi High Court in the Roche vs. Cipla (2015), the Controller held that the claimed invention exhibited an added layer of enhanced efficacy as the specification provided comparative activity and toxicity data in mice and monkeys.  Moreover, further comparative activity data had been filed during examination. Additionally, the Controller observed that medicine prepared from the claimed compounds has resulted in a breakthrough treatment of HCV infection and the medicine is approved in many countries including United States of America and India. Thus, the claimed invention was found to be outside the prohibition under section 3(d) rejection.

However, this case is far from over.  On May 13, 2016, I-MAK and DNP filed an appeal with the Delhi High Court on the grounds that the decision of the Indian Patent Office is contrary to the public interest, fails to assess the full scientific and legal evidence presented and ignores key Indian patent law and judicial precedent.  Please watch the BRIC Wall Blog for further updates on this appeal.

This post was written by Lisa Mueller of Michael Best.

 

An Overview of the USTR’s 2016 Special 301 Report on the State of IPR in India

In this week’s post, the BRIC Wall Blog continues to examine the Office of the United States Trade Representative (USTR) 2016 Special 301 Report (Report) released on April 12, 2016. The Report reviewed the state of intellectual property rights (IPR) protection and enforcement in U.S. trading partners around the world, and following extensive research and analysis, placed eleven (11) countries on the priority watch list and twenty-three (23) on the watch list. India is one of the 11 countries on the Priority Watch List in 2016. Although India has made efforts to improve its IPR, and the Indian courts retain their reputation for providing fair and deliberate treatment of both foreign and domestic litigants, long-standing and systemic deficiencies remain, in particular, in the pharmaceutical industry. Just yesterday, the Union Cabinet approved the National Intellectual Property Rights Policy, and a body of government-selected experts (the IPR Think Tank) is working closely with the United States to identify target issues for Indian policymakers. In particular, the Report expresses concerns regarding copyright infringement, patent system policies, trade secrets protection, and trademarks and counterfeiting.

With regards to copyright infringement, India has one of the highest rates of video piracy in the world, and according to a 2013 study, the number of incidents in India accounted for approximately half of all such piracy cases in the Asia-Pacific region that year. Despite the massive $4 billion dollar cost of pirated music and movies per year, India’s media and entertainment industry continue to grow and flourish; it is therefore even more imperative that India incorporate into its legal system more effective measures to counter piracy. To combat copyright infringement, the Report states that the United States has urged India to enact anti-camcording legislation, remodel its statutory license provisions, fully establish India’s Copyright Boards, and take steps to prevent public broadcasters from disseminating pirated content. The United States and India also announced important developments with respect to copyright through the 2015 Trade Policy Forum (TPF) Joint Statement, in which both countries agreed to strengthen copyright protection. The United States additionally held a workshop for a delegation of Indian government officials involved in copyright protection and enforcement, to discuss measures to curb piracy and promote content creation.

The patent system infrastructure in India also poses serious concerns for IPR protection. There is a significant backlog in the prosecution of pending patents, and Section 3(d) of the India Patents Act may limit the patentability of potentially beneficial innovations. The interpretation and application of Section 3(d) is unpredictable, and inventions that have successfully navigated prosecution in other countries can be denied patentability in India. This has been especially noticeable for inventions in software, biopharmaceuticals, agricultural chemicals, and green technologies. In 2015, India’s Ministry of Commerce and Industry issued The Patents (Amendment), Rules, 2015 (Patent Rule Amendments) in an effort to reduce delays in prosecution, however, the proposal incentivized the manufacture of products in India, going against international patent norms. The Indian government also needs to improve the conditions for which a compulsory license would be permitted, as only one compulsory license has been issued under Section 84 of India’s Patent Acts. The Report additionally urged India to provide an effective system for protection against unfair commercial use, without which companies are able to copy certain pharmaceutical products and seek immediate government approval for marketing based on the original developer’s data.

The Report also highlighted that India has not established reliable protection for trade secrets, and it is reportedly difficult to obtain compensation when these laws are violated. Additionally, India’s court system lacks sufficient procedural safeguards to protect trade secrets divulged through discovery, and there is a risk that such information may be publicly disclosed through the course of judicial proceedings. India is making efforts to improve laws that protect trade secret.

With regards to trademarks and counterfeiting, the Report noted that the level of production sale, distribution, importation, and exportation of counterfeit goods affecting India’s market remains concerning. Trademark holders face the risk of diminished profits and loss of reputation when consumers purchase fake products, and governments lose tax revenue since infringers generally pay no taxes or duties. The United States continues to express concerns about counterfeit and pirated goods produced in India and shipped to the United States.

Although India is taking steps to improve IPR protection and enforcement, the United States remains concerned about policies that appear to favor local manufacturing or Indian innovators in such a manner that damages the patent infrastructure not only in India but also around the world. Copyright and trademark infringement continue to pose a serious problem, and the unpredictable interpretation of the law provides modest legal coverage for inventors. It is encouraging that India is working to resolve these issues, however there are a number of important changes that need to be made and additional resources that need to be dedicated to strengthen IPR protection in India.

In the next post, the BRIC Wall Blog will examine in detail the Report’s findings on the state of IPR in China.

This post was written by Lisa Mueller and Caitlin MacNair.

An Overview of the USTR’s 2016 Special 301 Report on the State of IPR in Russia

On April 12, 2016, the Office of the United States Trade Representative (USTR) released its 2016 Special 301 Report (Report) reviewing the state of intellectual property rights (IPR) protection and enforcement in U.S. trading partners around the world. Following extensive research and analysis, the Report placed eleven (11) countries on the priority watch list and twenty-three (23) on the watch list   Russia remains on the Priority Watch List in 2016 as a result of continued and significant chal­lenges to IPR protection and enforcement. The Report indicates that IPR is not a priority for government officials in Russia, and that IPR enforcement continued to decline overall in 2015. In particular, the Report expresses concerns regarding copyright infringement, trademark counterfeiting, and non-transparent collecting society procedures.

Copyright infringement remains a persistent problem in Russia. Specifically, online privacy appears to be a pervasive issue. Although Russia’s antipiracy legislation continues to evolve, Russia remains home to many sites that facilitate online piracy and damage the market for legitimate content in Russia and other countries. The Report indicates that the overall number of raids, criminal charges, and convictions have declined in recent years. The Report further suggests that issuing injunctions against infringing websites does not address the root of the problem, and urges Russia to continue efforts to improve legislative and enforcement efforts that will result in fair, effective, and transparent copyright enforcement. Specifically, the Report suggests that Russia should be investigating and prosecuting the operators of such sites in order to increase efficacy of antipiracy legislation.

In addition to copyright infringement, Russia continues to struggle with a lack of trademark enforcement. This results in an abundance of counterfeit goods, such as seeds, agricultural chemicals, elec­tronics, information technology, auto parts, consumer goods, machinery, and other products, that are manufactured, transshipped, and sold in Russia. According to the Report, the Russian Ministry of Agriculture estimated in 2015 that 10 to 20 percent of hybrid sunflower, rapeseed, and soybean seed used in Russia was counterfeit.   In addition, smuggling of Chinese-origin counterfeit products through Kazakhstan and the Kyrgyz Republic into Russia remains an issue. Although Russia has developed an officially-approved methodology for test­ing pharmaceutical products, counterfeit pharmaceuticals also continue to be manufac­tured in Russia and made available through online pharmacies.

The Report also expresses concern with Russia’s implementation of the commitments it made in the WTO Working Party Report related to the protection against unauthorized disclo­sure of, or reliance on, undisclosed test or other data generated to obtain marketing approval for pharmaceutical products. The report suggests that although Russia has amended its Law on Circulation of Medicines, it has not issued the final regulations and detailed provisions that are necessary to ensure effective implementation of the law.

In conclusion, the Report urges Russia to develop a more comprehensive, transparent and effective legal framework and enforcement strategy to improve the state of IPR in the country. Specifically, Russia should aim to reduce IPR infringement, particularly the sale of counterfeit goods, and the piracy of copyright-protected content. The United States will continue to monitor Russia’s progress on these and other matters through appropriate channels.

In the next post, the BRIC Wall Blog will examine in detail the Report’s findings on the state of IPR in China.

This post was written by Lisa Mueller and Rikki Hullinger of Michael Best.

An Overview of the USTR’s 2016 Special 301 Report

On April 12, 2016, the Office of the United States Trade Representative (USTR) released its 2016 Special 301 Report (Report). The Report is an annual review of the state of intellectual property rights (IPR) protection and enforcement in U.S. trading partners around the world and is conducted by the Office pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988, The Uruguay Round Agreements Act, and the Trade Facilitation and Trade Enforcement Act of 2015 (19 U.S.C. §2242).

The Report identifies a number of wide ranging concerns, including: (1) the deterioration in IPR protection and enforcement in several trading partners; (2) reported inadequacies in trade secret protection in China, India, and elsewhere; (3) troubling “indigenous innovation” policies that may unfairly disadvantage U.S. right holders in markets abroad; (4) the continuing challenges of online copyright piracy; (5) measures that impede market access for U.S. products embodying IPR and U.S. entities that rely upon IPR protection; and (6) other ongoing systemic IPR enforcement issues in many trading partners around the world.

During the 2016 Special 301 process, seventy-three (73) trading partners were reviewed. Following extensive research and analysis, eleven (11) countries were placed on the priority watch list and twenty-three (23) on the watch list. The countries on the priority watch list and watch list are as follows:

Priority Watch List

Algeria

Argentina

Chile

China

India

Indonesia

Kuwait

Russia

Thailand

Ukraine

Venezuela

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

In the next series of posts, the BRIC Wall Blog will examine in detail the Report’s findings on the countries included on the priority watch list and watch list.

This post was written by Lisa Mueller.