[Ip-health] House Judiciary Committee hearing on trade secret legislation, and the revolving door

Elizabeth Rajasingh elizabeth.rajasingh at keionline.org
Thu Sep 25 09:59:07 PDT 2014


House Judiciary Committee hearing on trade secret legislation, and the
revolving door

Elizabeth Rajasingh, September 25, 2014

On September 17, the House Judiciary marked up H.R. 5233, “The Trade Secret
Protection Act of 2014.” The bill would create a civil right on action in
federal courts for misappropriation of trade secrets, as defined in the
bill. [Link to hearing [2], bill [3] and transcript of markup [4]]. This
controversial effort to federalize litigation over trade secrets has
opposition, including, for example, from 31 law professors who signed an
August 26, 2014 letter opposing the bill.

[Link here: https://s3.amazonaws.com/ftt-uploads/tradesecretletter2014.pdf
[5]. See the annex for more context on the debate over the bill.]

On June 24, 2014, the House Judiciary Committee held a hearing on trade
secret legislation, focusing on the international aspects of the
legislation. Witnesses at the hearing supported action on a federal bill,
in part to give the United States Trade Representative (USTR) a stronger
mandate to create higher global standards for trade secret protections.
Recently, corporate lobbying on trade secret norms in trade agreements has

The House Judiciary Committee invited four witnesses to testify. What are
the odds that a witness formerly worked on trade and IPR issues for either
the Congress or a federal executive agency, and now lobbies for corporate
right holders? Apparently 3 out of 4, or 75 percent.

Of the four witnesses, one previously worked for the United States
Congress, and two previously worked for USTR and other federal agencies.

Here are the details for those 3 witnesses.

Richard Hertling

Richard Hertling works for Covington & Burling, a firm he joined in 2013.
Hertling worked in varying capacities for the U.S. House of
Representatives, the U.S. Senate and the U.S. Department of Justice
(USDOJ). The Senate roles included Chief Counsel for Senator Specter (R-Pa)
and Chief of Staff for Senator Fitzgerald (R-IL). Most recently, he served
as the Staff Director and Chief Counsel for the very committee to which he
was testifying, the House Judiciary Committee.

Hertling testified in support of the bill, saying, “[recent legislative
successes] still have not put trade secrets — so valuable to America’s most
innovative companies — on par with other forms of intellectual property,
including patents, trademarks, and copyrights, all of which enjoy
protection under a federal civil remedy.”

“A consistent, harmonized legal framework will provide a more efficient and
effective legal structure to protect the valuable intellectual property of
American businesses and help protect and promote U.S. global
competitiveness and preserve high-quality U.S. jobs. It will also put trade
secret protection in-line with the remedies available for owners of other
forms of intellectual property”

Thaddeus Burns

Thaddeus Burns is currently Senior Counsel on IP and Technology Policy for
General Electric. Before moving into the private sector, Burns worked for
the United States Patent Trade Office (USPTO) and the United States Trade
Representative (USTR).

Burns testified on behalf of the Intellectual Property Owners Association
(IPO) saying, “The United States must be a leader in trade secret
protection. A federal civil remedy for trade secret misappropriation is
important for our global trade agenda. To date, the United States has not
consistently received cooperation from international jurisdictions in
protecting trade secrets in part because it does not have its own federal
civil statute to reference in encouraging the adoption and enforcement of
similar legislation by its treaty partners… Establishing such a remedy is
particularly important as the European Union considers its Trade Secrets
Directive and as the United States negotiates multilateral trade agreements
and bilateral investment treaties.”

(Not directly related, but interesting: At GE, Burns was a major opponent
of the treaty for the blind, on the grounds it would set a precedent in
global trade negotiations on patent rights.)

Chris Moore

Chris Moore has held several government positions dealing with trade and
IPR issues. He worked for the United States Department of Commerce (DOC) as
an International Trade Specialist. From 2003 to 2005, he worked at the
Office of the U.S. Trade Representative as a Senior Policy Advisor to the
Deputy USTR. From 2005 to 2007, he was Deputy Assistant Secretary for Trade
Policy and Programs U.S. Department of State.

After leaving the government, he became an Executive Vice President for
Romulus Global Issues Management, then a policy advisor at the United
Nations World Food Programme. Now he works for the National Association of
Manufacturers, where he is currently Senior Director for International
Business Policy. Earlier this year Chris Moore was lobbying USTR to
threaten trade sanctions on the compulsory licensing of patents on cancer

Moore’s testimony on trade secrets also called for Congressional passage of
trade promotion authority (fast track).

David Simon

Simon was the only witness who did not previously work for the government.
He is currently Senior Vice President for IP at Salesforce.com and
testified in support of strong trade secret protection while also
expressing concern about seizure provisions included in previous trade
secret laws.

“Far more serious, however, is many countries’ failure to recognize trade
secrets as a form of property. That refusal to recognize trade secrets as a
species of property can have major consequences with enforcement

“The lack of consistent protection means that in negotiations the USTR in
trying to improve foreign trade secret protection in bilateral and
multilateral talks can only seek the lowest common denominator of those
state and federal laws.”

Additional Information.

Forbes article discussing the implications of a new Trade Secret law.

Letter signed by several professors in opposition to a new Trade Secret law.
https://s3.amazonaws.com/ftt-uploads/tradesecretletter2014.pdf [5]

Source URL: http://keionline.org/node/2097
[1] http://keionline.org/user/57724
[2] http://judiciary.house.gov/index.cfm/2014/6/hearing
[3] https://beta.congress.gov/113/bills/hr5233/BILLS-113hr5233ih.pdf
[5] https://s3.amazonaws.com/ftt-uploads/tradesecretletter2014.pdf

Elizabeth Rajasingh
Perls Fellow, Knowledge Ecology International
1621 Connecticut Ave. NW, Suite 500
Washington, DC 20009
*elizabeth.rajasingh at keionline.org <elizabeth.rajasingh at keionline.org>* |

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