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United States Patent and Trademark Office
Performance and Accountability Report Fiscal Year 2003
Management Discussion and Analysis

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Intellectual Property Policy and Leadership Performance

Photo showing U.S. Ambassador to Italy Melvin Sembler looking on as Under Secretary Rogan signs a joint declaration committing Italy and the U.S. to jointly pursue a compatible electronic filing system for trademarks.

As U.S. Ambassador to Italy Melvin Sembler looks on, Under Secretary Rogan signs a joint declaration committing Italy and the U.S. to jointly pursue a compatible electronic filing system for trademarks.

In addition to the examination and issuance of patents and trademarks, USPTO works to promote protection of the intellectual property of American innovators and creators on both the domestic and international levels. As the largest IP office in the world, the USPTO is leading efforts to develop and strengthen domestic and international IP protection.

Under the AIPA of 1999 (Public Law 106-113), the USPTO is directed to advise the President, through the Secretary of Commerce, and all Federal agencies, on national and international IP policy issues including IP protection in other countries. USPTO is also authorized by the AIPA to provide guidance, conduct programs and studies, and otherwise interact with foreign IP offices and international intergovernmental organizations on matters involving the protection of IP.

The growing importance of IP rights and the globalization of economic activity has led to new cooperative initiatives between the USPTO, international bodies, and other IP offices, including the EPO, the JPO, the European Union’s Office for Harmonization in the Internal Market (OHIM) for trademarks and designs, the World Intellectual Property Organization (WIPO), and the World Trade Organization (WTO). International negotiations, consultations, and information-sharing efforts led by USPTO leaders and international specialists are geared to providing simpler, more cost-effective means of protecting the IP rights of U.S. nationals throughout the world.

In FY 2003, IP activities included:

IP Treaties/Agreements

  • Madrid Protocol: The U.S. deposited its instrument of ratification on August 2, 2003, and the USPTO began receiving applications under the Madrid Protocol on November 2, 2003. The Madrid Protocol is a treaty that facilitates the protection of U.S. trademark rights throughout the world. U.S. trademark owners are now able to file a single on-line application with the USPTO in English, pay the fees in U.S. dollars, and potentially obtain protection for their marks in any or all of the 61 member countries that are members of the Madrid Protocol.
  • Patent Cooperation Treaty Reform: The USPTO continued to participate in WIPO’s Committee on Reform of the Patent Cooperation Treaty (PCT) in an effort to achieve a more simple, cost-effective system. Major treaty reforms, based on a U.S. initiative, will go into effect on January 1, 2004. The Meeting of the International Authorities (MIA) mechanism was reconvened in FY 2003 to revise and refine the PCT search and examination guidelines to reflect changes to the PCT Regulations adopted by the Assembly in September 2002. The USPTO took the lead in revising the now-completed PCT search and examination guidelines. These guidelines are expected to facilitate the recognition of work among the PCT authorities and national offices.
  • Standing Committee on Law of Patents: The USPTO participated in WIPO’s Standing Committee of the Law of Patents in an effort to agree to a harmonized set of substantive patent laws. If successful, a final substantive patent law treaty would help control workloads and enable applicants to use a single application to obtain patent protection in a number of different countries.
  • WIPO Internet Treaties: Under the Digital Millennium Copyright Act (DMCA), the USPTO is required to prepare an annual report to Congress on the international status of ratification, implementation, and enforcement of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). These treaties, commonly known as the WIPO Internet Treaties, are designed to ensure international protection of copyrighted works, performances, and sound recordings in the digital environment. Over the last five years, USPTO has worked to ensure the ratification and full implementation of the Treaties, which entered into force in FY 2002. In its final report to Congress regarding the treaties, USPTO reported that 42 States had acceded to or ratified the WCT and the WPPT, respectively. Currently 41 countries are members of each Treaty, helping to create a seamless web of protection for copyright works on-line.
  • Standing Committee on the Law of Trademarks, Industrial Designs, and Geographical Indications: The USPTO succeeded in promoting Trademark Law Treaty (TLT) reform as the primary focus of work by the Standing Committee. The TLT presently requires Members to accept certain trademark filings on paper. Reform of the TLT would give the USPTO flexibility to convert to complete electronic processing for trademarks. The USPTO also continued its educational work aimed at raising awareness of the need for fair treatment of trademarks and geographical indications. Geographical indications are signs or names used to indicate the regional origin of particular goods or services (e.g., “IDAHO” for potatoes).
  • Standing Committee on Copyright and Related Rights (SCCRR): The USPTO continued to participate in the work of the SCCRR to develop its proposal on treaty language for a new WIPO treaty for the Protection of the Rights of Broadcasting, Cablecasting, and Webcasting Organizations. The SCCRR also monitored national developments in the legal protection of databases and reported on related developments in U.S. legislation.
  • Free Trade Agreements: The USPTO advised the Office of the USTR on IP issues in successful negotiations with Singapore and Chile on FTAs. USPTO also began advising USTR on FTAs with Australia, Morocco, and five Central American countries (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua). The USPTO also continued advising USTR on the multi-year negotiations on the Free Trade Area of the Americas (FTAA). In these negotiations, USPTO worked with USTR and delegations from each country to assure that standards are created that build on the foundation established in the Trade Related Aspects of Intellectual Property (TRIPS) Agreement and other international agreements to protect IP.
  • WTO/TRIPS: The USPTO actively participated in U.S. delegations to the Council for TRIPS of the WTO over the past year. The TRIPS Council continued to review the IP regimes of numerous countries and continued its discussions relating to compulsory licensing of patents in the pharmaceutical sector, technology transfer, the protection of geographical indications, and other issues. With the continuation of the ongoing round of multilateral trade negotiations in the WTO that was launched at Doha, Qatar, in November 2001, the USPTO has remained actively involved in WTO IP property issues.
  • International Science and Technology Agreements: The USPTO continued working closely with the U.S. Department of State in the negotiation of cooperative Science and Technology (S&T) agreements with other countries, including provisions of the IP annex to S&T agreements that ensures equitable allocation of rights to IP created in the course of cooperative research.
Photo showing over 30 Chinese judges visiting the USPTO to learn more about civil and criminal intellectual property enforcement.

Over 30 Chinese judges visited the USPTO to learn more about civil and criminal intellectual property enforcement.

Enforcement

  • Technical Assistance & Training: The USPTO was engaged on a number of fronts to strengthen IP administration and enforcement abroad. For example, in July 2003, the USPTO hosted the “USPTO/WIPO Asia and Pacific Program for the Judiciary on Intellectual Property Rights (IPR) Enforcement” in Washington, D.C., for members of the appellate and supreme court judiciary from Asia and the Pacific region on IPR protection and enforcement. In August 2003, the USPTO organized a program with the Jordan IP Association, the International Intellectual Property Institute, the Court of Appeals for the Federal Circuit, and George Washington University Law School in Amman, Jordan, to celebrate IP Week. More than 300 lawyers, government officials, and other interested Jordanians attended this four-day program. The USPTO also hosted several delegations of prosecutors, judges, and lawyers from China, and worked with Commerce and other officials to provide outreach to U.S. businesses handling challenged IPR issues overseas, including a pilot project to provide assistance to small and medium-sized businesses throughout the U.S. encountering IPR problems in China.
  • Bilateral and Plurilateral Negotiations: The USPTO advised many U.S. Government agencies on issues involving IPR protection and enforcement involving countries, regions, and international organizations throughout the world. For the second year, a USPTO official served on temporary assignment to the U.S. Embassy in Beijing to assist the embassy and U.S. rights holders on IPR issues in the People’s Republic of China. USPTO officials have also supported negotiations undertaken by Commerce, USTR, and other officials on IP matters in various countries. By working closely with USTR, the U.S. Department of Justice, and Commerce’s International Trade Administration, USPTO officials have also worked to provide for proportionate, deterrent penalties for commercial scale counterfeiting and piracy in East Asia, South Asia, and other regions.
  • Special 301: The USPTO advised USTR in the administration of the Special 301 provisions in U.S. trade law, which requires USTR to identify those countries that do not provide adequate and effective protection for IPR or lack of market access for products relying on IP protection. The USPTO provided analyses of IP laws of numerous countries, and participated in several bilateral consultations and negotiations conducted by USTR under Special 301 and in the context of the U.S. trade agenda.
Photo showing Under Secretary Rogan posing with Jorge Amigo, Director General of the Mexican Intellectual Property Office and other Mexican officials after discussing cooperation efforts between the two offices.

Under Secretary Rogan poses with Jorge Amigo, Director General of the Mexican Intellectual Property Office and other Mexican officials after discussing cooperation efforts between the two offices.

Trilateral

  • Patent Trilateral Offices: The USPTO prepared for the 21st Annual Trilateral Conference to be held in Tokyo, Japan, in November 2003. The meeting focused on issues that will assist in carrying out the USPTO’s 21st Century Strategic Plan. The main focal points were supporting the objectives of workload sharing, harmonization of practices, and collaborating on automation developments in electronic filing and electronic file wrapper systems.
  • Trademark Trilateral Cooperation Meeting: At the May 2003 meeting, the USPTO, together with the JPO and OHIM, agreed to a trademark identification project that will produce a list of identifications of goods and services acceptable to all three Offices for users of any of the three systems.

Geographical Indications

Worldwide Symposium on Geographical Indications: In July 2003, the USPTO and WIPO organized and hosted a three-day “Worldwide Symposium on Geographical Indications.” The Symposium was held in anticipation of the WTO’s 5th Ministerial Conference in Cancun, Mexico, and provided a forum for the exchange of information and views on geographical indications at the national, regional, and international levels and on future trends in that area. Presentations were made by experts in the field of protection of geographical indications representing international organizations, non-governmental organizations, producers, and administrators from WIPO Member States from around the world.

Digital Rights Management

Technology Education and Copyright Harmonization Act Report: On May 14, 2003, USPTO released its report to Congress on technology designed to protect digitized copyrighted works from infringement, as required under the Technology Education and Copyright Harmonization Act of 2002, which was signed into law in November 2002. The study identified over 100 commercial firms that have developed, are proposing to develop, or are currently offering such technological protection systems. The report also contains information on selected products that are currently available in the marketplace, along with industry-led initiatives, including standard-setting activities, to develop new products.

Miscellaneous

WIPO Intergovernmental Committee: The USPTO headed the U.S. delegation to the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore. The focus of U.S. efforts is to encourage developing countries to meet stated concerns about protecting genetic resources, traditional knowledge, and folklore either through current IP regimes or through non-IP laws, and to strongly discourage the creation of new legal regimes.

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