For more context, consider that the report would not have existed if Senator Wyden did not request it from CRS. And, USTR was given the report at a time when USTR was evaluating last minute changes in the agreement, or the content of a possible signing statement. As chair of a Senate subcommittee on trade, Senator Wyden works closely with the USTR. I would be looking now at USTR to release the report. If USTR claims they don't have permission to release the report, and if that is not true, then someone at USTR is lying, or not making much an effort to sort things out.
CRS will not release these type of studies to the public unless a Member of Congress gives the Ok. Senator Wyden has given the report to the USTR, we believe without any restrictions regarding USTR releasing it to the public. Senator Wyden's office has not released the report to the public. Whether or not USTR can refuse the release the document will depend upon a legal determination of the control it has of the record. As the appeal notes, the mere fact that something comes from the Congress does not exempt it from FOIA. We have done everything we can, including contacting the office of the Senator, to receive and disseminate the report. We expect the report will be informative, but we will not know the conclusions the report has reached, until we see it. If this case ends up before a judge, it will have broader ramifications for FOIA law. In any case, USTR, which is part of the White House, is clearly disregarding the memo on transparency that Obama issued on his first day in office. On a more general issue, Senator Wyden has pushed for transparency of the ACTA negotiations, I think more than any other member of Congress. That says something very good about Senator Wyden, and also something negative about the other members of congress, from both parties.
The World Blind Union wants a minimum standard of exceptions, and some harmonization of exceptions, and an agreement on the cross border uses of those exceptions, in order to share accessible works across borders, and not require duplication of effort. Right now there is both enormous waste and huge disparities of access to accessible works depending upon where you live. The treaty would improve all of these things without requiring new taxpayer outlays.
USTR does not want to say the agreement is binding because they don't want to submit the agreement to the Congress for review. DG-Trade does not want to acknowledge that the US only sees this as a political document, and will not change its laws. But at the end of the day, it will change global norms. We regret the Obama Administration is insisting on such a sleazy approach to global norm setting. I expected something better from these guys.
The NIH has denied the petitioners the right to hearing. The patent holders obviously made a private case against the initial petition to the NIH, and the NIH has taken their side against the petitioners, but without the benefit of a hearing, or further opportunities for the petitioners to respond to the patent holder's objections to the march-in request. I previously was involved in the only NIH march-in case involving a drug to go to a hearing. It was the 2004 ritonavir case. In that case, Abbott made several concessions on the pricing of ritonavir, for about 75 percent of AIDS patients, in order to avoid the march-in. The Faby's patents have serious concerns, and they are well represented by Allen Black. They think they are better off if the NIH will act on the patent. I don't see how the NIH can justify not giving them an opportunity to make their case in a public hearing, and to present evidence as to how the remedy they seek will address the concerns they have about current and future shortages of Fabrazyme. There is more context on this case here: http://www.keionline.org/fabrazyme
The United States federal government has waived its sovereign immunity, insofar as agreeing to pay for infringements of patents, copyrights, plant breeder rights and semi conductor designs by statute. State government have other options. Florida just refused to pay anything when it infringed a patent, and the Supreme Court found in their favor, a result that has not been reversed since. While it is true that the court could reverse itself, someday, since 1999 the law has been very clear that damages are not available from state institutions. One benefit of this is in the area of research activities at State Universities, which are not subject to damages for patent infringement. There is no provision in ACTA to allow this, and thus ACTA is inconsistent with US law, on this point. And, in other areas too. Plus, areas where legislation is possible, such as patent reform or orphan works legislation. You can deny there are inconsistencies, or acknowledge that lots of people don't care, because ACTA, an agreement about the enforcement of IPR, has no mechanisms to enforce its own norms. Developing countries, on the other hand, will likely be subject to a lot of pressure to implement the ACTA norms. As one former USTR official told me, when I complained about U.S. trade officials telling developing countries that parallel trade was contrary to TRIPS, "its not about the truth, its about power." In some cases, this means, the power to create norms that are designed to apply only to others. Unfortunately, if you can exempt yourself from the laws you create, some will be tempted to create unjust laws.
Dear Anonymous Coward. The language on injunctions was in fact changed in response to our work on this issue, where we focused a lot of attention on 28 USC 1498. Actually, quite a few things have been changed in the ACTA text, and we are trying to change the things that have not yet been fixed. But where do you see anything in ACTA regarding "sovereign immunity"? The language you cite, which comes from Article 44.2 of the TRIPS, says you have to pay money if you infringe -- consistent with 28 USC 1498, but contrary to other federal statutes, and US law for state governments, including state run Universities. Indeed ACTA broadens, by a lot, the circumstances when you have to make damages available for infringing activities.
Everyone on the wrong end of a TRIPS complaint at the WTO has tried to claim that this language allows them to avoid specific obligations in the TRIPS, and this always fails. The WTO provides a few examples here: http://goo.gl/VxQk: "Article 1.1 gives Members the freedom to determine the appropriate method of implementing those two specific requirements, but not to ignore either requirement" I have more examples here: http://www.keionline.org/node/990
I don't think the nuclear energy provisions are the most important element of the critique of ACTA. But here I would note that the standards for compensation for use of a patent for nuclear energy also are covered by 42 U.S.C. § 2188 : US Code - Section 2188: Monopolistic use of patents, which states:
Whenever the owner of any patent hereafter granted for any invention or discovery of primary use in the utilization or production of special nuclear material or atomic energy is found by a court of competent jurisdiction to have intentionally used such patent in a manner so as to violate any of the antitrust laws specified in section 2135(a) of this title, there may be included in the judgment of the court, in its discretion and in addition to any other lawful sanctions, a requirement that such owner license such patent to any other licensee of the Commission who demonstrates a need therefor. If the court, at its discretion, deems that such licensee shall pay a reasonable royalty to the owner of the patent, the reasonable royalty shall be determined in accordance with section 2187 of this title.
I would agree, however, this is not as clear a conflict with the ACTA text as 2184, both because the court has the discretion of issue a "license," which is a Part II exceptions issue that is not changed by ACTA, and it has discretion to order the reasonable royalty.
There is a difference between exceptions to rights, and exceptions to obligations to enforce rights. (Part II vrs Part III of the TRIPS). The text you describe does not address the issue of the ACTA obligations to provide the possibility of injunctions or damages for infringing the rights that are granted.
The official duties language is not particularly important for exceptions. The 2nd paragraph in the injunctions provision is important, and we lobbied for 2 years to get it in. But it does not cover the non-remunerated cases, such as the many that I cited. Also, the bad language on damages in the ACTA text is in conflict with various statutory standards for damages. Since some statutes we cite deal with both damages and injunctions, to check for consistency you have to check to see if either provision are violated by the ACTA, not just one.
There is a distinction, legally, between exceptions to rights, and exceptions to remedies to enforce rights. In the WHO TRIPS Agreement, rights and exceptions to rights are set out in Part II of the Agreement. The obligation to enforce those rights, and exceptions to those obligations, are set out in Part III of the TRIPS. The areas we have identified as problems for ACTA are exceptions to remedies to rights, not exceptions to the rights themselves. This was the topic of intense negotiation in the ACTA. What are the permitted exceptions to obligations to enforce rights? Thus, if the US provides for a right, but limits the remedies to enforce that right, is it consistent with the ACTA or not? And if countries can implement whatever exceptions they want to ACTA provisions, what does ACTA actually mean?
There are some "trade" liberalization negotiations where keeping proposals secret have been justified on the grounds that this is the only way to deal with interest groups that benefit from protectionism. You can argue whether or not antidemocratic measures are justified in such cases. But the ACTA has nothing to do with trade liberalization. It is an IPR enforcement agreement, involving global norms for 38 or so countries. I don't think the antidemocratic model works well in this context.
The Sanders bill actually keeps patents, but elimi
In S.2210, patents would exist, but would be used to establish claims on the prize fund, not to prevent generic competition for products. The prizes themselves would be divided among drug developers competitively, according to the relative impact of products on health care outcomes. This is the putative basis for third party reimbursements, but prizes are a much more elegant way to do it, solving a number of well known problems. Access to products would be much greater, and R&D incentives would be targeted more efficiently, to products that actually delivered increases in therapeutic outcomes.
On the post: USTR Refuses To Release Congressional Research Service Study On Legality Of ACTA
It's not the same report
On the post: USTR Refuses To Release Congressional Research Service Study On Legality Of ACTA
The March 12 CRS report
On the post: USTR Refuses To Release Congressional Research Service Study On Legality Of ACTA
Re: Re:
On the post: USTR Refuses To Release Congressional Research Service Study On Legality Of ACTA
The CRS ACTA report FOIA
On the post: Why Is A Treaty For Letting The Blind Have Access To Books Too Difficult, But ACTA Is Fine?
Why a treaty is needed
On the post: EU: ACTA Is A Binding Treaty; US: ACTA Is Neither Binding, Nor A Treaty
Legally binding or not, it sets global norms
On the post: The Background Story Of The NY Times' Relationship With Julian Assange
Sometimes
On the post: NIH Won't Let Others Supply Life Saving Drug Even Though Genzyme Can't Make Enough
The NIH decision
On the post: Is WIPO Really The Right Organization To Fix Copyright?
Finding the "right" fora
On the post: Many Of The Countries Negotiating ACTA In Secret Saw Their Corruption Perception Increase
I stand corrected
On the post: US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like... So How About Everyone Else?
Françoise Castex
On the post: US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like... So How About Everyone Else?
Re: Re: Re: 28 USC 1498
On the post: US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like... So How About Everyone Else?
Re: 28 USC 1498
On the post: US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like... So How About Everyone Else?
WTO interpretations of this language
On the post: Where ACTA Disagrees With US Law
Re: Re: Re: Re: Re: Re:
Whenever the owner of any patent hereafter granted for any invention or discovery of primary use in the utilization or production of special nuclear material or atomic energy is found by a court of competent jurisdiction to have intentionally used such patent in a manner so as to violate any of the antitrust laws specified in section 2135(a) of this title, there may be included in the judgment of the court, in its discretion and in addition to any other lawful sanctions, a requirement that such owner license such patent to any other licensee of the Commission who demonstrates a need therefor. If the court, at its discretion, deems that such licensee shall pay a reasonable royalty to the owner of the patent, the reasonable royalty shall be determined in accordance with section 2187 of this title.
I would agree, however, this is not as clear a conflict with the ACTA text as 2184, both because the court has the discretion of issue a "license," which is a Part II exceptions issue that is not changed by ACTA, and it has discretion to order the reasonable royalty.
On the post: Where ACTA Disagrees With US Law
Re: Re: Re: Re: Re:
The official duties language is not particularly important for exceptions. The 2nd paragraph in the injunctions provision is important, and we lobbied for 2 years to get it in. But it does not cover the non-remunerated cases, such as the many that I cited. Also, the bad language on damages in the ACTA text is in conflict with various statutory standards for damages. Since some statutes we cite deal with both damages and injunctions, to check for consistency you have to check to see if either provision are violated by the ACTA, not just one.
On the post: Where ACTA Disagrees With US Law
Exceptions to obligations
On the post: No, ACTA Secrecy Is Not 'Normal' -- Nor Is It A 'Distraction'
Secrecy of trade negotiations
On the post: Bill Proposed To Make All Pharma Patents Public Domain
The Sanders bill actually keeps patents, but elimi
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