:?~ ltc TRIAL LAWYERS ASSOCIATION Website: E Street, NE, Washington, DC Filed Electronically

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1 ltc TRIAL LAWYERS ASSOCIATION Website: E Street, NE, Washington, DC LINDA C. ODOM PRESIDENT SARAH E. HAMBLIN PRESIDENT-ELECT STEFANIE.SHANBERG VICE PRESIDENT DAVID F. NICKEL TREASURER JEFFREY M. TELEP SECRETARY T. CYWALKER PAST PRESIDENT AT-LARGE MEMBERS OF THE EXECUTIVE COMMITTEE: ERIC S. NAMROW GOUTAM PATNAIK STEPHEN R. SMITH (TERM EXPIRES 2015) PAUL C. GOULET ALEXANDER W. KOFF BENJAMIN LEVI (TERM EXPIRES 2016) VERONICA S. ASCARRUNZ MAREESA A. FREDERICK DAVID H. HOLLANDER, JR. (TERM EXPIRES 2017) PAST PRESIDENTS & FORMER ADMINISTRATIVE LAW JUDGE: JAMES B. ALTMAN G. BRIAN BUSEY JUDGE CARL C. CHARNESKI ALEXANDER D. CHINOY JULIANA M. COFRANCESCO MICHAEL L. DOANE F. DAVID FOSTER ERIC J. FUES THOMAS V. HEYMAN GARY M. HNATH THOMAS L. JARVIS ALICE A. KIPEL STEVEN E. LIPMAN RALPH A. MITTELBERGER BARBARA A. MURPHY TONY V. PEZZANO TOM M. SCHAUMBERG BRYAN A. SCHWARTZ LARRY L. SHATZER KENT R. STEVENS MARCIA H. SUNDEEN Filed Electronically October 15, 2015 Mr. Danny Marti U.S. Intellectual Property Enforcement Coordinator Executive Office of the President Office of Management and Budget th Street, NW Washington, DC Re: Request for Public Comments: Development of the Joint Strategic Plan On Intellectual Property Enforcement, 80 Fed. Reg (September 1, 2015) Dear Mr. Marti: On behalf of the International Trade Commission Trial Lawyers Association (ITCTLA}, I enclose the ITCTLA's comments on the Development of the Joint Strategic Plan on Intellectual Property Enforcement. Thank you for your consideration. :?~ Linda C. Odom President

2 COMMENTS OF THE INTERNATIONAL TRADE COMMISSION TRIAL LA WYERS ASSOCIATION IN RESPONSE TO U.S. INTELLE.CTUAL PROPERTY ENFORCEMENT COORDINATOR'S REQUEST FOR COMMENTS ON DEVELOPMENT OF THE JOINT STRATEGIC PLAN (OCTOBER 16, 2015) The International Trade Commission Trial Lawyers Association ("ltctla") respectfully submits these comments in response to the notice of the U.S. Intellectual Property Enforcement Coordinator ("IPEC") seeking comments on the development of the Joint Strategic Plan on Intellectual Property Enforcement ("Proposed Joint Strategic Plan") for Fed. Reg (Sept. 1, 2015). The ITCTLA applauds IPEC's initiation ofwork on the Proposed Strategic Plan and, as discussed below, believes that improvements in the transparency, efficiency and fairness of the process for enforcement of exclusion orders issued by the U.S. International Trade Commission ("ITC") are necessary. By way of background, the ITCTLA is an association of attorneys dedicated to improving the administration of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C ("Section 337"), and informing attorneys, international trade officials and legislators about practice before the ITC. A nonprofit, nonpartisan educational organization founded in 1984, the ITCTLA publishes a newsletter devoted to Section 337 developments, the Section 337 Reporter, develops educational programs featuring ITC Commissioners, Administrative Law Judges ("ALJs") and other trade and intellectual property officials, and maintains committees to present the views of Section 337 bar members to the ITC, Congress and the Executive Branch. The ITCTLA has offered testimony before Congressional committees and submissions to the Executive Branch to continue to ensure that Section 337 serves as an effective remedy to prevent importation of infringing goods. 1

3 IPEC's notice requesting comments on the development.of the Proposed Joint Strategic Plan for identifies a number of broad objectives on which it seeks comments. 80 Fed. Reg (Sept. 1, 2015). Among those important topics are: I d. Reducing the supply of infringing goods, domestically and internationally; Identifying weaknesses, duplication of efforts, waste, and other unjustified impediments to effective enforcement actions; and Promoting information sharing between participating agencies to the extent permissible by law... The ITCTLA believes that in developing the Proposed Joint Strategic Plan, IPEC should continue to focus on policies that strengthen the effectiveness of border enforcement of intellectual property rights including ITC remedial orders designed to halt unfair imports. Imports of products that infringe or violate U.S. intellectual property rights, including particularly, patents trademarks and trade secrets, continue to cause significant harm to U.S. industry, U.S. employment and U.S. intellectual property rights. The ITC and Section 337 remain principal bulwarks against the rising tide of infringing imports. IPEC recognized in its 2013 Joint Strategic Plan on Intellectual Property Enforcement ("2013 Joint Strategic Plan") the need to evaluate and to improve the process for enforcement of ITC exclusion orders. IPEC also recognized that responsibility for enforcement of exclusion orders is shared by Customs and Border Protection ("CBP") and the ITC. To improve enforcement, the 2013 Joint Strategic Plan announced that IPEC would "chair a new interagency effort directed at strengthening the processes that CBP uses with regard to enforcement of ITC exclusion orders pertaining to intellectual property." 2013 Joint Strategic Plan at 17. The 2013 Joint Strategic Plan provided that the interagency group would be comprised of representatives of the ITC, DHS, DOC, Treasury and DO], as well as other federal agencies, and that the group would review existing procedures for 2

4 evaluating the scope of exclusion orders. I d. IPEC noted that "one focus of the interagency review will be on ensuring that CBP uses transparent and accurate procedures for determining whether an article is covered by the ITC exclusion order." I d. IPEC acknowledged that understanding what is covered by an ITC exclusion order "can often be challenging, particularly in cases in which a technologically sophisticated product such as a smartphone has been successfully redesigned..." I d. In June 2013, following IPEC's announcement of the interagency review to strengthen processes for CBP enforcement of ITC exclusion orders, IPEC published a notice in the Federal Register seeking public input on potential improvements to such processes. 78 Fed. Reg Qune 20, 3013). In response, numerous bar groups including the ITCTLA, corporations, and other interested parties submitted comments. Docket ID: OMB ; Among the numerous concerns raised by the ITCTLA and other commenters is that CPB needs to be more transparent in issuing field instructions to the ports of entry concerning enforcement of ITC exclusion orders. Comments of the ITCTLA at 2 Quly 22, 2013). Another concern raised by ITCTLA in its comments was that CBP often decides whether an exclusion order covers a redesigned product through an ex parte decision-making process pursuant to its regulations in 19 C.F.R. Part 177. Id. To remedy this situation, the ITCTLA and other commenters recommended that CBP revise its current regulations for interpreting ITC exclusion orders, and create an inter partes procedure for such interpretation that would, among other things, promote transparency and due process. E.g., Comments of the ITCTLA at 5 ("Customs should create an inter partes procedure for use in resolving situations involving significant disputed issues"); Comments of the American Intellectual Property Law Ass'n at 3 Quly 19, 2013) ("AIPLA recommends than an inter partes procedure be developed to assist CBP and increase the transparency of exclusion order enforcement"). The 2013 Joint Strategic Plan indicated that the interagency working group would 3

5 prepare recommendations within six months of the issuance of the Joint Strategic Plan. However, to date, such recommendations have not been publicly announced.* The ITCTLA urges IPEC in developing its next Proposed Joint Strategic Plan to continue to focus on improving the effectiveness and transparency of procedures for enforcement of ITC exclusion orders. In a promising development, ITCTLA understands that CPB has for some time been working on a Notice of Proposed Rulemaking ("NPRM") that would create a new, inter partes procedure for interpretation and enforcement of ITC exclusion orders under Customs regulations, 19 C.F.R. Part 177. Although the ITCTLA reserves the right to comment on and potentially to oppose specific details of any NPRM once CPB issues it, the ITCTLA encourages IPEC to expedite development of these and, as may be called for, additional procedures for enforcement of ITC exclusion orders that promote transparency, fairness and effectiveness, and to seek public comment on such new and improved procedures. The ITCTLA thus strongly encourages IPEC to channel much-needed attention and resources to strengthening the ITC exclusion order enforcement process. *In February 2015, the ITC announced a new pilot program for expediting rulings on whether or not redesigned or new products are covered by outstanding exclusion orders. / room/featured news/pilot_program_will_test_expedited_procedures. Although this new pilot program is only in its early stages and has not yet been tested, the ITCTLA commends the ITC for introducing this new program that is designed to improve and streamline enforcement of exclusion orders. 4