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By Ronald Fink
The Obama administration has announced that it will proceed with a controversial anti-counterfeiting trade agreement that is designed to strengthen companies' intellectual property rights here and abroad.
Last Friday, the Office of The United States Trade Representative issued a statement saying that it would pursue international negotiations over the Anti-Counterfeiting Trade Agreement.
The ATCA claim process, however, has come under fire. Critics claim it lacks transparency and favors the interests of publishing and pharmaceutical companies that hold copyrights, trademarks and patents.
The treaty (which is subject to negotiations among Australia, Canada, the EU, Japan, Mexico, Morocco, New Zealand, South Korea, Switzerland and the U.S.) is designed to combat the proliferation of counterfeit and pirated goods.
"The ACTA negotiations provide an opportunity to toughen international standards for the enforcement of intellectual property rights, making it harder for counterfeit and pirated products to enter our country, and making the world safer for the innovation and creativity that are so critical to the U.S. economy," United States Trade Representative Ron Kirk said.
"As we proceed with these negotiations, we will ensure that the public is kept well informed and has further opportunities to give input."
But skeptics say the negotiations are being pushed by holders of IP rights in a bid to counter the results of recent U.S. Supreme Court decisions.
"This is big government and big business at its worst, creating rules without input or sensitivity to the concerns of consumers," James Love, director of Knowledge Ecology International, a Washington, D.C. based group, said in a statement. "The topics under review are not simple technical issues or directed at organized crime, they are big sweeping changes in our basic freedoms, and underhanded attempts to give lobbyists rules they can't get in a normal democratic setting."
In comments KEI sent earlier this year to the USTR, Love wrote that the anti-counterfeiting trade agreement flew in the face of recent Supreme Court decisions involving eBay and KSr International. Those decisions seemed to narrow patent protection.
Love also noted that the General Accountability Office and other bodies have found that losses from counterfeiting have been greatly exaggerated.
But patent holders have pushed for the ACTA--in part because of concerns that the legal rulings have made their rights more difficult to enforce.
In the case involving eBay in 2006, the court ruled that patent holders had no guaranteed right to an injunction so long as they could receive royalties from those that violated their patents. In the case involving KSr a year later, the court overturned lower court decisions that upheld patents that involved little or no innovation.
Those decisions have had dramatic consequences, according to attorneys that specialize in IP. "The scale has shifted in favor of alleged infringers on substantive legal issues," attorneys Nicholas Papastavros and Maia Harris of Nixon Peabody wrote in a note to clients last fall. "Significantly more patents are being found obvious, and fewer injunctions preventing infringers from making, using, or selling infringing technology are issuing."
In the absence of the ACTA, Ed Weisz, a partner in the New York
City law firm of Cohen Pontani Lieberman & Pave, told CIOZone, "a lot of patents out there will be invalid going forward."
The treaty would likely have no immediate bearing on those and other IP rights in the U.S. But critics contend that businesses will try to exploit the new rules in a bid to get Congress to legislate protection that will negate the Supreme Court rulings.
Early drafts of the ACTA "were clearly written by industry lobbyists, and are now being pushed by various trade representatives, and then our elected officials will have 'no choice' but to change [the] laws to be in compliance," blogger Mike Masnick wrote today on the website Techdirt.
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