Last month, I participated in the State Bar of California’s Intellectual Property Section’s annual trip to Washington to meet with policymakers addressing IP issues. The views below are solely my own and do not necessarily reflect the views of any delegation member.
Capitol Hill Meetings
The delegation began with the week meeting at Senator Barbara Boxer’s (D-CA) office. When you enter her office, their is a blow up of the image from October 1991 when then-Rep. Barbara Boxer and six of her female colleagues marched to the Senate to demand a delay in the confirmation vote of Clarence Thomas. At that time, there were only two women Senators and 29 women in the House of Representatives. Boxer became one of four women elected to the Senate the next year in what is known as the “Year of the Woman.” Today there are 20 women in the Senate and 84 women in the House, comprising nearly twenty percent of the seats.
Our meeting was with Kaye Meier, Senior Counsel for the Senate. Ms. Meier stressed the election year realities – a limited number of legislative days left before Election Day and continued gridlock – making passage of anything difficult. Even Senator Boxer, who is retiring at the end of this session, is focused on things that can be accomplished via Executive Order.
Ms. Meier indicated that the following issues might get to the Senate or House floor:
- Defend Trade Secret Act (S. 1890) – creating a federal trade secret remedy had already passed the Senate. It was adopted by the House on April 27th signed by President Obama on May 11th .
- Email Privacy Act (H.R. 699) – updating privacy protections for email was passed by the House on April 27th.
- Marketplace Fairness Act (S. 698) – to enable states to collect sales taxes from online retailers is expected to get a Senate vote.
- The Fair Access to Science and Technology Research Act (S. 779) – to ensure availability of publicly funded research on the internet was passed by the Senate Commerce Committee last year.
She added that there could be some anti-net neutrality legislation but that it was certain to face a Presidential veto.
Issues that were almost certain not to progress were (i) ICANN transition; (ii) immigration reform; (iii) patent reform; and (iv) the Trans-Pacific Partnership Agreement. Ms. Meier explained that with respect to patent reform, the Senate wants to allow time for the recent reforms and the Supreme Court’s decision in Alice Corp. to take root before taking further action. Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014)
The delegation’s penultimate meeting was with Rep. Zoe Lofgren (CA-19) who has represented the San Jose area since 1995 and is the chair of the 34-member California Democratic Congressional Delegation. Rep. Lofgren met with us moments before a House Judiciary Committee markup on the Defend Trade Secrets Act which she strongly supported.
Rep. Lofgren’s top priority is trying to improve the H-1B Visa program to prevent a talent shortage in Silicon Valley. She is talking with Rep. Issa on co-sponsoring a legislative solution. Rep. Lofgren also spoke on the following issues:
- Email Privacy Act (H.R. 699) – she indicated it was not a great advance but at least codified existing law.
- Patent Reform – she would like to see Congress act on venue reform but knows the Texas delegation will fight it.
- NSA Reform – this is a growing priority among House members who would like to see the Fourth Amendment applied to NSA operations. She is also a member of a Congressional encryption working group that meets regularly.
- Trans-Pacific Partnership Agreement – she did not think this would be approved anytime soon but believes the rhetoric on both sides of this issue has been overheated. She noted that the United States Trade Representative’s office had a mixed record when it comes to enforcement of non-monetary issues. She added that there is strong opposition to TPP from the Vietnamese community in her district because of Vietnam’s suppression of online dissidents.
- ICANN Transition – she did not expect anything to happen but did not believe the US should delay the transition.
- Copyright Office – she agrees that it needs a technology upgrade but did not support establishing it as an independent agency. She indicated that housing the office with the Patent and Trade Office would make more sense.
She did not expect any action on the Marketplace Fairness Act since state taxing authorities were unwilling to compromise. She also did not foresee action on the Senate-passed Consumer Review Freedom Act (S. 2044) which prohibits non-disparagement clauses in consumer contracts. The bill is often referred to as the “KlearGear bill”, after the online retailer whose $3,500 penalty for negative comments led to a consumer action in which it was ordered to pay $306,000 in damages Palmer v. KlearGear.com, Case No. 1: 13-cv-00175 (N.D. Va. May 5, 2014). California passed a similar law in 2014 (Civil Code § 1670.8).
White House, DOJ and FTC Meetings
Our first day of meetings featured meetings with the Justice Department and Federal Trade Commission. At the Justice Department we met with a number of lawyers from the Computer Crime and Intellectual Property Section (CCIPS). CCIPS, which began in 1991 with just five prosecutors, now has 44 lawyers and a Cybercrime Lab. This includes a Silicon Valley unit which opened in 2000 and a cybersecurity unit which was added in 2014. As stated on their website:
CCIPS attorneys regularly run complex investigations, resolve unique legal and investigative issues raised by emerging computer and telecommunications technologies; litigate cases; provide litigation support to other prosecutors; train federal, state, and local law enforcement personnel; comment on and propose legislation; and initiate and participate in international efforts to combat computer and intellectual property crime.
The CCIPS team outlined their role in notable prosecutions including Kim Dotcom/Megaupload, Silk Road and prosecution of a State Department employee who ran a cyber-sextortion scheme. They stated that their top priorities include (i) online streaming; (ii) trade secret theft; (iii) domestic service of subpoenas for overseas conduct; and (iv) treaty efforts on preserving digital evidence. They are also concerned about law firms being the next big target for hackers and data thieves and are working with law firms and bar associations to increase awareness over cyber security.
We spoke about the Internet Crime Complaint Center (ic3.gov) which processes criminal complaints regarding online activity. It was viewed as a useful tool, especially when there are repeat actors it allows them to see trends and recurring activity. They also referenced their handbook on how to report IP Crimes.
The most poignant moment of the week came when one of the DOJ attorneys solicited our views over the Apple encryption battles. They seemed genuinely flabbergasted over Apple’s public relations success in the case and the call for preventing any access to encrypted devices. Noting that even the the attorney-client privilege – the most sacred privilege under the law – has exceptions to prevent crime or fraud, they could not understand why a mobile phone should be treated differently.
We also met with Suzanne Drennon-Munck, Chief Counsel for Intellectual Property and Deputy Director of the Federal Trade Commission’s Office of Policy Training. The Federal Trade Commission, which just turned 100 in 2014, serves two main functions antitrust and “prevent[ing] unfair methods of competition, and unfair or deceptive acts or practices in or affecting commerce.”
Drennon-Munck stressed that the FTC uses meetings with delegations and public conferences to gain/share information in policy development. She highlighted recent FTC conferences on cyber security, PrivacyCon and the sharing economy. On the competition side, Ms. Drennon-Muck indicated that the FTC priorities include addressing pay for delay in the pharmaceutical industry and false claims made by patent trolls like MPHJ.
Our last meeting of the week was with Philippa Scarlett, Deputy Intellectual Property Enforcement Coordinator and staff from the newly formed IPEC. IPEC (sometimes referred to a the “IP Czar”) was created by the PRO-IP Act ofo 2008. Its mission, as stated on its website:
The job of the IPEC office is to coordinate the work of the Federal government in order to stop illegal and damaging intellectual property theft. We work with relevant Federal agencies, law enforcement organizations, foreign governments, private companies, public interest groups, and others to develop and implement the best strategies to conduct this fight. We aim to foster and protect invention and creativity by reducing infringement at home and abroad.
IPEC’s current priorities include coordinating a joint plan for IP enforcement within the federal government; encouraging other nation’s to create a similar office to promote enforcement; and working with industry on the ICANN gTLD roll out. I encouraged her to explore the growing problem of Domain Theft. Ms. Scarlett was intrigued by the issue and how best to prevent this going forward, which I suggested might be best addressed by changes to ICANN’s UDRP or Registrar DRP proceedings.
USPTO and Copyright Office Meetings
Our second day of meetings consisted of an afternoon of meetings with various constituencies with the USPTO and a morning briefing with the Copyright Office.
At the Copyright Office we met with Maria Pallante, the Register of Copyrights and her staff. The Copyright Office, which is an arm of the Library of Congress (LOC), is in a state of flux as it is overcoming cutbacks that resulting in a 40 percent cut in staff; inadequate technological infrastructure and uncertainty as to whether it should remain part of the LOC, be moved to USPTO or be a stand-alone entity. This is not inconsequential since the Copyright Office processes copyrights worth trillions to the U.S. economy.
Among the policy areas the Copyright Office currently has under review are exemptions to the Digital Millennium Copyright Act and whether a small claims process would work for visual works infringement claims.
We also met with Michelle Lee, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Lee began her career as a computer scientist at Hewlett-Packard Research Laboratories, as well as at the Massachusetts Institute of Technology (M.I.T.) Artificial Intelligence Laboratories before switching law and ultimately becoming Deputy General Counsel for Google and the company’s first Head of Patents and Patent Strategy.
Lee is very impressive in person which is not surprising since she has been named by Politico Magazine as one of the “Top 50 Most Influential Visionaries in American Public Policy” in 2015 and by Washingtonian Magazine as a “Tech Titan” in 2015.
Lee and her staff highlighted efforts to address a crash of the USPTO system caused by external factors and to harmonize review standards with IP offices in the EU, Japan, Korea and China. She also noted that the opening of an USPTO office in San Jose has proven to be a great success.