[Ip-health] Non-responsive letter from David Kappos of USPTO to Senators Sanders and Brown regarding ACTA consistency with US law

Anne Mira Guha anne.guha at keionline.org
Wed Nov 17 13:01:18 PST 2010

Non-responsive letter from David Kappos of USPTO to Senators Sanders and
Brown regarding ACTA consistency with US law
by James Love on 17. November 2010 - 14:56

In a October 19, 2010, Senators Bernard Sanders (I-VT) and Sherrod Brown
(D-OH) wrote to David Kappos, the Director of the USPTO, asking for an
assessment of conflicts between the October 2010 ACTA text, and U.S. law.
(attached here).

In a letter dated Friday, November 12, 2010, David Kappos wrote to Senators
Sanders and Brown (link here). The November 12, 2010 Kappos letter was
described by Senator Sanders' office as "a non-response," and that's polite.
Senators Sanders and Brown asked Kappos to compare the text in ACTA,
highlighting in particular the articles on damages, injunctions, other
remedies and border measures, against U.S. law, including but not limited to
one supreme court decision and several selected statutes in the area of
patents, copyrights and trademarks. The Kappos response contained no
analysis, no cites to U.S. law, no cites to the ACTA text; only a thank you
and a promise that "our USPTO issue experts will continue to work with USTR
as they finalize the results achieved in Tokyo."

In related issues, last week the U.S. Copyright Office declined to say that
the ACTA text is consistent with the proposed orphan works legislation.
Earlier Stan McCoy of USTR asserted that the Copyright Office was giving
assurances that ACTA was consistent with the proposals to address orphan
copyrighted works. For those who actually care about future orphan works
legislation, note that the USTR and the Copyright Office are not telling the
same story. (More on the orphan works/ACTA issue here, and on other
inconsistencies in U.S. law here.)

It now appears as though the Congressional Research Service, the USPTO and
the U.S. Copyright Office are refusing to say that ACTA is consistent with
U.S. law, or that the ACTA provisions on copyright damages are consistent
with proposed legislation to address expanded access to orphaned copyrighted
works. USTR, on the other hand, shows little concern about this, and
continues to assure people that the damages section of ACTA, which requires
all sorts of tough measures on copyright damages, is consistent with the
proposed orphan works legislation, even though the latter eliminates the
remedies that ACTA will require be made available.

Finally, note that in his October 20, 2010 communication to the European
Parliament, Karel De Gucht, the European Commissioner for Trade, formally
referred to ACTA three times as a treaty. USTR maintains ACTA is not a
treaty, will not require changes in U.S. law, and does not require the
consent of the Senate.

Anne Mira Guha
Knowledge Ecology International
anne.guha at keionline.org

JD/MA candidate (2011)
The George Washington University Law School
The Elliott School of International Affairs (International Science and
Technology Policy)

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