Saturday, January 31, 2015

White House Plan On Trade Secrets Focuses On Diplomacy, Best Practices

Posted: February 20, 2013

A new strategic plan released by the White House today (Feb. 20) to address the growing threat of economic espionage and trade secret theft contains a trade policy element under which the Office of the U.S. Trade Representative will take new actions to promote effective protection and enforcement of trade secrets.

According to the plan, USTR will better cooperate with other like-minded countries and target weaknesses in trade secret protection "through enhanced use of the annual Special 301 process," including possible crafting of action plans with other countries on this issue.

USTR will also seek new provisions on trade secret protections in trade agreements; and raise trade secret protections in all appropriate venues, including the Asia-Pacific Economic Cooperation (APEC), according to the plan.

The trade policy element is part of a section on diplomatic efforts, which in turn is one of five focus areas in the stepped up fight against increasing trade secrets theft.

Regarding diplomatic efforts, the report stresses that foreign governments "must recognize that trade secret protection is vital to the success of our economic relationship and that they must take steps to strengthen their enforcement against trade secret theft."

To help achieve that end, the administration will apply "sustained and coordinated diplomatic pressure on other countries to discourage trade secret theft," the report states.

The report makes clear that the administration will focus these diplomatic efforts on those foreign governments "where there are regular incidents of trade secret theft." Such governments will likely include China and Russia.

To help structure this renewed diplomatic effort, the State Department will track scheduled diplomatic engagements and meetings by senior Administration officials. Moreover, the Commerce Department and the Office of the U.S. Trade Representative "will seek to build coalitions with other countries to deliver similar message to countries of concern and to press jointly, or in coordination, for improved protection of trade secrets," it states.

The State Department and the U.S. Patent and Trademark Office (USPTO) will also coordinate with U.S. embassies abroad in countries known to present high-risk conditions for trade secret theft to "incorporate trade secret protection into their established Intellectual Property Rights (IPR) Working Group plans," the report explains.

The remaining four elements in the report are better promotion of voluntary "best practices" by U.S. companies to protect trade secrets, enhanced domestic law enforcement operations, potentially new legislation, and new efforts to raise public awareness.

The report, which is titled "Administration Strategy on Mitigating the Theft of U.S. Trade Secrets," warns that trade secret theft "threatens American businesses, undermines national security, and places the security of the U.S. economy in jeopardy." It also states that the pace of economic espionage and trade secret theft against U.S. corporations appears to be accelerating.

The first section of the report.also calls for more robust international law enforcement cooperation, international training and capacity building, and new work with "international organizations."

The second component of the White House plan centers on voluntary best practices by U.S. companies. The U.S. Intellectual Property Enforcement Coordinator (IPEC), working with other U.S. government agencies, "will help facilitate efforts by organizations and companies to develop industry led best practices to protect trade secrets," the report states. Best practices may vary from sector to sector, according to the report.

Third, the report calls for enhanced domestic law enforcement options. "The Department of Justice and the FBI will continue to prioritize ... investigations and prosecutions and focus law enforcement efforts on combating trade secret theft. The FBI is also expanding its efforts to fight computer intrusions that involve the theft of trade secrets by individual, corporate, and nation-state cyber hackers," the report notes.

The administration will also boost information sharing with companies; for instance, the report states that 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." ODNI will also share threat warning and awareness information with the private sector, the report notes.

Fourth, the report suggests that U.S. domestic laws might be improved to help counter the theft of trade secrets. The administration will "review existing federal laws to determine if legislative changes are needed to enhance enforcement against trade secret theft. The initial review process will conclude within 120 days," the report states. "The Administration ... will recommend to Congress any proposed legislative changes resulting from this review process."

Finally, the report calls for increased public awareness and stakeholder outreach. "Highlighting can help mitigate the theft of trade secrets by encouraging all stakeholders, including the general public, to be aware of the detrimental effects of misappropriation on trade secret owners and the U.S. economy in general."

The report also includes an annex that provides a summary of economic espionage and trade secret criminal cases, starting in January 2009 and proceeding up to the present day.

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