[Ip-health] HR4279: Worrying IP Legislation

[Ethan Guillen]

Hello All,

Below is a link to a bit of analysis and an editorial and link to
information on a House bill that could have some troubling effects.

Has anyone been following this closely?

Thanks,
Ethan

http://www.publicknowledge.org/bill/110-hr4279

----------------------------------------------------------------------
This article was sent to you by someone who found it on SFGate.
The original article can be found on SFGate.com here:
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/02/17/EDR1V0LCD.DTL
 ---------------------------------------------------------------------
Sunday, February 17, 2008 (SF Chronicle)
U.S. expanding the law - domestic and foreign - to benefit corporations
Ben Klemens


   As a U.S. taxpayer, you may be contributing to fewer cheap drugs on
international shelves. Public dollars support the Office of the U.S. Trade
Representative, the trade agency with authority to pressure foreign
governments to change their domestic intellectual property laws. As such,
the agency actively presses for laws that would keep generic drugs out of
markets worldwide.
   Congress is considering legislation to create a separate executive branch
office dedicated to using government resources for lobbying other
countries to change their laws, sometimes exclusively to benefit certain
U.S. companies.
   That's a bad idea for patients here and abroad, because it would give the
U.S. government more power in an area where it should instead have less.
   The international intellectual property system is based on an ingenious
1994 international treaty: Rather than establishing an unwieldy
international copyright and patent office, the agreement merely stipulates
that every signatory country must have domestic copyright and patent
systems that meet certain basic requirements.
   The trade agency's interpretation of what other countries' domestic laws
need to cover expands beyond the broadest definitions within U.S. law. To
give one example, data gathered during clinical trials of new drugs are
not protected by copyright, patent or trademark in the United States. But
as a rule of bureaucratic procedure, the Food and Drug Administration
restricts use of test results finding that a brand-name drug is safe when
considering the safety of identical generic drugs. Even though it is hard
to argue that this FDA rule is an intellectual property law, the trade
representative is using its authority to press for comparable rules
restricting the approval process for generic drugs in other countries.
   It doesn't take much sleuthing to follow the money back to the U.S.
pharmaceutical manufacturers on the trade agency's advisory panel, who can
maintain monopolist profits while a generic drug is blocked from the
market in Guatemala, Malaysia or any of the dozen other countries that the
trade agency is pressuring to adopt U.S.-style restrictions on generic
drug approval.
   Proselytizing U.S. intellectual property law would be easier if we knew
exactly what U.S. intellectual property law is, but many debates still
rage in the courts and in the law journals. Is software patentable?
Justice Breyer, Justice Stevens and the U.S. Patent and Trademark Office's
semi-judicial board of appeals have clearly expressed that it is not. Yet
the trade representative thinks it is, which is why a 2000 agreement with
Jordan required that country to change its domestic laws to better
accommodate the patenting of software, and its nonbinding reports find
fault with countries whose patent systems do not allow software patents.
   The U.S. Trade Representative's treaties bind all parties to rewrite
their
domestic laws accordingly. That is, the agency can dictate how Congress is
to write domestic law, and how federal courts interpret it, via its
international treaties. We all want intellectual property law to evolve
with the times, but every new treaty by the trade agency makes evolution a
little more difficult.
   HR4279, now pending in the House Judiciary Committee, would establish an
Office of the U.S. Intellectual Property Enforcement Representative,
spinning off intellectual property from the trade representative's
portfolio into its own office, without repealing the agency's authority to
negotiate other countries' intellectual property laws. The new office
would have authority to define the scope of intellectual property as it
sees fit, and it would have expanded ability to use the resources of other
departments (the Department of Justice, the State Department, Homeland
Security, state and local governments, and many others) in pressuring
other countries to change their domestic laws accordingly.
   The 1994 treaty on trade-related international property defines a simple
base for copyright, patent and trademark, and it makes sense for the trade
agency to hold countries to the basic framework. But our trade
representative has gone well beyond that, to simply interpreting
intellectual property as its corporate advisory boards wish, and then
using the muscle of the U.S. government and the resources of U.S.
taxpayers to press other countries into changing their laws to suit that
interpretation. Congress needs to restrict the trade representative's
expansive tendencies, instead of releasing what little rein is left.

   Ben Klemens is a guest scholar in Economic Studies at the Brookings
Institution. Brookings is a private nonprofit organization devoted to
independent research and innovative policy solutions.
----------------------------------------------------------------------
Copyright 2008 SF Chronicle


------ End of Forwarded Message