2023 Dc Delegation Trip Report

JurisdictionUnited States,Federal
AuthorFrom left to right: Rober Payne; Dave Branfman; Leaf Williams; Soody Tronson, Emily Yu; John Wierzbicki.
CitationVol. 48 No. 3
Publication year2023
2023 DC DELEGATION TRIP REPORT

From left to right: Rober Payne; Dave Branfman; Leaf Williams; Soody Tronson, Emily Yu; John Wierzbicki.

How many years has the IP Section been sending a delegation to DC? 10 years? 15? 20? Nobody had an answer. At least 15, I think. It doesn't matter. They appointed John Wierzbicki as the lead. That's me. My job was to get us there, get the information we needed, and get out.

There were six of us in the delegation. Three had taken part in it before: Dave Branfman, Cannabis I.G. chair and entertainment lawyer; Bob Payne, Trademark I.G. chair and patent and trademark lawyer; and me, Copyright I.G. co-vice-chair and copyright lawyer. I went last year as a delegate, the other two went some time ago. Time seems to have an elastic quality. I hoped I could trust Dave and Bob to step up if it got hairy out there. They both had beards, which made it difficult at times to tell them apart, but we managed.

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Three members of the delegation were new: Leaf Williams, International I.G. programming chair, New Matter co-production editor, and commercial litigator; Soody Tronson, Technology, Internet & Privacy I.G. vice chair, and patent and technology lawyer; and Emily Yu, IP Section chair and privacy lawyer. Their addition made it a solid team. I ignored the early chatter by those who questioned whether we would be able to pull this off. Nerves are funny things.

During last year's meetings, someone told us that we are the only IP contingent of a state bar that meets with agencies and legislative staffs to build relationships and obtain information. We're not exactly part of the state bar, not anymore. "It's complicated," is what I'm supposed to say at times. I didn't. Our uniqueness played in our favor, and we lined up meetings with the U.S. Patent and Trademark Office (USPTO), the U.S. Copyright Office (USCO), Senator Chris Coon's office, Senator Tom Tillis' office, Congresswoman Judy Chu's office, Intellectual Property Enforcement Coordinator (IPEC), and Office of Standards and Intellectual Property (OSIP). It would be a very full three days and we would have to pace ourselves. I upped the training regimen.

Memory is another funny thing. Like nerves. I can't remember my children's ages without counting up from the year they were born. But I remember exactly where I was when I heard that Bob's flight had been diverted to Alabama. Emily, Soody, Leaf, and I were at a ramen bar, throwing back a few noodles. Leaf had arrived first. She hired an Uber to drive her from Delaware (where she was attending a trial) to D.C., exhibiting a rare blend of resourcefulness and recklessness that we would shortly come to rely on. Soody, Emily, and I had arrived on the same flight from San Francisco in a show of solidarity and lack of other options. Dave's flight was delayed in North Carolina but was expected to pull through. But Bob was lost. We hoped the airline would deliver him to the hotel or notify us to retrieve him at the airport. But when? What if they never found him?

Primum non nocere. The first rule of leadership, or something else. We did nothing. Dave showed up, then Bob. We passed the test. Adversity had forged us into a team.

The rest of the trip is a blur. I recall a few things. Like Leaf taking notes, her hand swinging wildly across a yellow pad. Dave offering collaboration with the Section. Bob listing out all the concerns that he had heard from trademark practitioners. Soody and patent eligibility reform; Emily and age appropriate design code; and the wraith of Generative AI looming over it all. It is there in the reports. Read them. We had fulfilled our mission. It was time to go home.

INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR

Our first meeting of the trip took place on the morning of May 1, 2023 with Steve Aitken and Summer Kostelnik of the Office of the U.S. Intellectual Property Enforcement Coordinator (IPEC). We met them in the New Executive Office Building, which is part of the White House complex.

IPEC was created in 2008 as part of the Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act (Pub. L. 110-403, at 15 U.S.C. 8111 et seq.), to advise the President and coordinate with cabinet departments and agencies on the development of the United States' overall intellectual property policy and strategy, to promote innovation and creativity, and to ensure effective intellectual property protection and enforcement. It coordinates the development of a Joint Strategic Plan on Intellectual Property Enforcement and reports to the President and Congress on domestic and international intellectual property enforcement programs. The President nominates and the Senate confirms an Intellectual Property Enforcement Coordinator who serves within the Executive Office of the President. IPEC's webpage is at https://www.whitehouse.gov/ipec/.

IPEC works with various departments and agencies to help ensure a streamlined and effective "whole

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of government" approach to intellectual property policy. IPEC does not have the operational lead for carrying out programs (e.g., it does not review trademark or patent applications, or investigate or prosecute crimes) but rather encourages coordination and collaboration between agencies as well as between Federal agencies, the private sector, and with other countries. As part of these efforts, IPEC—in collaboration with other Federal agencies—works with other governments to help strengthen IP protection and enforcement. IPEC regularly interacts with private-sector stakeholders to discuss concerns, issues, and perspectives on or related to IP matters, and can point the group to appropriate contacts in the various departments and agencies.

Aitken has been a legal advisor with IPEC for the past eight years and prior to that spent 25 years with the Office of Management and Budget, including as Deputy General Counsel. Kostelnik has been with IPEC for five years and prior to that spent 10 years at the USPTO working in both international patent policy and as a patent examiner. They explained that IPEC has had career staff and detailees from other agencies. The detailees are employees from one agency who work for a period of time with another agency, while staying on the sending agency's payroll. They come from places that match IPEC's priorities such as the Intellectual Property Rights (IPR) Center, the Department of Homeland Security (DHS), the USPTO, and the State Department. The agencies find it useful to have their people experience work in other departments. Detailees tend to remain with IPEC for about a year; however, the assignment can also be extended.

At the time of our meeting, IPEC was without a Coordinator and the agency consisted of the two members with whom we met. The prior Coordinator, who had been appointed by President Trump, left in January 2021. On May 9, 2023, President Biden nominated Deborah Robinson as Coordinator. As the White House announcement noted, Robinson's career "includes leadership roles as a corporate attorney and in public service as a prosecutor," as "head of intellectual property enforcement at Paramount Global (formerly ViacomCBS)" and, before that, "five years protecting music creators' rights at the Recording Industry Association of America and seven years as an Assistant District Attorney for the city of Philadelphia" (https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/08/president-biden-announces-key-nominees-45/).

During our meeting, Aitken and Kostelnik discussed two examples of IPEC's engagement with other agencies. A few years ago, IPEC engaged with the USPTO regarding the huge rise that USPTO experienced in trademark applications from China and the initiatives that USPTO adopted to help ensure that trademark applications are properly submitted (e.g., through USPTO's adoption of a "U.S. counsel" requirement) and to identify those applications that were fraudulently submitted. IPEC also participated in a DHS-chaired interagency working group regarding the trafficking in counterfeit and pirated goods via e-commerce, which culminated in DHS' issuance of a report on the topic in January 2020. The DHS report set forth a series of recommendations for best practices that the private sector could adopt and reforms that the federal government could make, without being based on legislation needing to be enacted (https://www.dhs.gov/sites/default/files/publications/20_0124_plcy_counterfeit-pirated-goods-report_01.pdf).

IPEC responds to inquiries from interested parties, such as trade organizations, and it also considers what the Executive Branch should be thinking about for the future of IP protection and enforcement. Given its role in the development of the Joint Strategic Plan on Intellectual Property Enforcement, IPEC brings to the table a forward-looking focus on exploring possible approaches for strengthening IP protection and enforcement. In this regard, IPEC also works on IP-related trade issues with the United States Trade Representative (USTR) and other agencies.

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One area where IPEC has been forward leaning is in the area of "trusted notifier" programs, such as the 2016 agreements that the Motion Picture Association entered into with Donuts, Inc. and Radix domain name registries. Those programs were adopted through voluntary agreements between corporate copyright holders and Internet intermediaries, in which they cooperatively identify piracy websites and get them shut down. (These and other voluntary agreements to address online IP theft are discussed in the Information Technology and Innovation Foundation (ITIF) article—"How Voluntary Agreements Among Key Stakeholders Help Combat Digital Piracy" (February 24, 2020)—at https://itif.org/publications/2020/02/24/how-voluntary-agreements-among-key-stakeholders-help-combat-digital-piracy/.) In a separate type of "trusted notifier" program, which seeks to address the opioid crisis, the Food and Drug Administration (FDA) and National...

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