The White House has released a strategy for mitigating the theft of U.S trade secrets by foreign competitors and foreign governments. The strategy co-ordinates and improves U.S. Government efforts to protect the innovation that derives the American economy and supports domestic jobs. The strategy includes a range of measures aimed at increasing U.S. diplomatic engagement, supporting industry-led efforts to develop best practices to protect trade secrets and encourage companies to share best practices with each other, and increasing public awareness of the threats and risks posed by trade secret theft. In addition, the Justice Department will continue to prioritise the investigation and prosecution of trade secret thefts by foreign competitors and governments and recently-enacted legislation is expected to improve enforcement efforts. While many of the specific initiatives set forth in the White House strategy are merely a continuation of existing efforts, the document showcases the commitment of the Obama administration to defend U.S. intellectual property rights as a means of preserving and enhancing the competitiveness of the U.S. economy.
Some of the actions being taken by Obama Administration include:
The administration will continue to apply sustained and co-ordinated diplomatic pressure on other countries to discourage trade secret theft. This will be achieved by using a whole of government approach directed as a sustained, consistent and co-ordinated message from all the appropriate agencies (including the departments of Commerce, Defence, Justice, Homeland Security, State and Treasury and the USTR) to foreign governments must recognize that trade secret protection is vital to the success of our economic relationships and that they must take steps to strengthen their enforcement against trade secret theft.
Trade Policy Tools
The USTR will make additional efforts to promote the adequate and effective protection and enforcement of trade secrets, including (i) targeting weaknesses in trade secret protection through enhanced use of the annual Special 301 process; (ii) seeking through trade negotiations new provisions on trade secret protections requiring parties to make available remedies similar to those provided for in U.S. law; (iii) continuing to raise trade secret protections as a priority issue in all appropriate bi-lateral, regional and multi-lateral trade discussions and trade and IP-related forums; and (iv) pursuing deeper co-operation with trade partners that share U.S. interests to promote enhanced trade secret protection.
International Law Enforcement Co-operation, Training and Capacity Building
Federal law enforcement agencies will encourage co-operation with their foreign counterparts to enhance efforts to pursue domestic investigations of trade secret theft by foreign entities and encourage foreign law enforcement to pursue those target themselves. The Department of Justice and the Federal Bureau of Investigation, in collaboration with the departments of Homeland Security and State, will include trade secret theft awareness and enforcement instruction in applicable international law enforcement training forums and country-specific training missions.
Enhanced Domestic Law Enforcement Operations
The Department Of Justice will continue to make the investigation and prosecution of corporate and state-sponsored trade secret theft a top priority. The FBI is expanding its efforts to fight computer intrusions that involve the theft of trade secrets by individual, corporate and nation-state cyber hackers.
The office of the Director of National Intelligence (ODNI) will coordinate within the intelligence community to inform the private sector about ways to identify and prevent the theft of trade secrets that benefit a state sponsor or an entity with ties to a foreign government. Expanded discussions between the intelligence community and the private sector will focus on the number and identity of foreign governments involved in trade secret misappropriation; the industrial sectors and types of information and technology targeted by such espionage; the methods used to conduct such espionage; and the dissemination, use and associated impact of information lost in trade secret misappropriation. ODNI will also share threat warning and awareness information with the private sector, including by briefing trade association groups and conferences on industry-specific threats and imparting counterintelligence tradecraft procedures tailored to the private sector. For its part, the National Intellectual Property Rights Coordination Center will obtain leads regarding trade secret misappropriation through its Report IP Theft initiative.
Public Awareness and Stakeholder Outreach
The administration will continue to conduct education and outreach efforts to raise awareness about the detrimental effects of trade secret misappropriation. For example, the DOC will leverage existing resources like www.stopfakes.gov to provide useful information for the private sector such as general information on the threat of trade secret theft, expanded country specific toolkits with information on how to protect trade secrets I priority markets, developments in the laws and enforcement practises of significant trading partners, and webinars on trade secret theft awareness. In addition, the USPTO and the International Trade Administration will utilise current road show trainings to provide forums to educate the private sector, particularly small- and medium- sized businesses, regarding the economic implications of corporate and state sponsored trade secret theft.
This article was originally published in the Stitch Times magazine, May, 2013 issue.