Dean C. Garfield photo
Encouraging All Countries to Respect Intellectual Property
The White House today released a report that is intended to set the stage for greater coordination across the federal government to protect the intellectual property of American business.  As part of the release, I participated in a panel discussion that examined the global challenges that companies face in this arena.  Here’s what I had to say, excerpted from the full discussion.

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Dean Garfield:  I think that to the extent we can work to persuade other markets that [protecting and respecting trade secrets] is in their national best interests as well, that we serve ourselves well.  If we can point to strong trade secrets protections that actually help markets to innovate, and reinforce that an important part of the innovation ecosystem that other markets are trying to re-create is having strong trade protection policy.  I think to the extent that some countries realize that we encourage the type of innovation that they want to see, but we want to see it develop through global standards.  Working in that state I think is quite important.

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Assistant Attorney General Lanny A. Breuer (moderator):  Dean, jumping off from that point, ITI represents 50 or so of America’s biggest and most innovative high-tech companies.  What in your view does ITI do to encourage members to focus on the threat of trade secret theft and really to share best practices among themselves?

Dean:  Three things principally, and I would say it is less ITI-specific than to the innovation sector generally.  One is an issue that Victoria [Espinel] started with at the beginning.  And, like everyone else, I should thank Victoria and Rob for their leadership in this field.  I know it feels like Valentine’s Day all over again with all of the love we’re throwing at you.  But it’s well deserved.

This is a growing global problem and it’s important that we learn lessons and convene and look at best practices across geographic boundaries and we’re working to do that.  So that’s one.

Two is working across industry silos.  There are a lot of different strands across the innovation ecosystem and, often times, it is our tendency to work in the semiconductor industry or in the photovoltaic or otherwise.  But, in order to share best practices and work effectively, we’ve got to work across those industry silos to make sure we’re getting the best out of those best practices and optimizing our learning. 

The third and final thing I would say is making sure that we’re building on existing infrastructure, if you will, that are advancing the sharing of best practices.  So, for example, there was an organization created in the private sector a year and a half ago called CREATe – the Center for Responsible Enterprise and Trade – that’s focused on sharing best practices among industry.  Government, or the public sector, is playing an important role in that regard as well.  NIST works quite collaboratively with private sector in advancing consensus-based voluntary standards.  So helping to support and advance those public sector and private sector initiatives I think is quite important.

Part of the reason that we’ve all been showering so much love on Victoria and the work here is, I think, recognition that we can do a lot more.  And so the convening power and the catalyst for action that comes out of this event I think will be quite important and will be a motivation for us as well to put added emphasis on these issues, not only as ITI but in conjunction with all of our companies who are really driving innovation in this country and globally.

Breuer:  Dean, a few minutes ago, Karan [Bhatia, Vice President and Senior Counsel, Global Government Affairs and Policy, General Electric] was talking about what GE does and talked about when it will work with law enforcement.  Having seen what a number of different companies do – when a company, from your perspective, becomes a victim of trade secret theft, what have you determined are the factors that a company relies on when it determines that it either will pursue civil remedies and perhaps file suit against the perpetrators, or, in fact, refer the case criminally to the Department of Justice?

Dean:  That’s a great question.  I think that as you and Attorney General Holder noted at the beginning, in the vast majority of instances, the remedy that companies pursue is through their civil remedies.  I think part of benefit of this event and the work that’s been done on this report is that we’ll have greater clarity around what it takes to advance a criminal case.  I think, as a general matter, there isn’t a great understanding of the thresholds, for instance, on when the U.S. government will pursue a case and when it will not.  And so, most of the remedies are focused on the areas that Karan identified, which is looking at what you can do to protect your own trade secrets as well as the contractual remedies you may have developed in advancing that civilly.   

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Dean:  One of the things we’re experiencing in a lot of these markets is a combination of activity that includes – and Ambassador Hormats said it well – where trade secrets, forced localization, and other mercantilist policies are coalescing into keeping U.S.-based companies -- and including the free flow of information – in keeping U.S. companies from competing fairly in those markets.  It would be impossible for our companies to succeed and continue to participate in those marketplaces without an all-of-government approach.  So the work that the State Department and USTR and the U.S. government, in general, is doing in this regard is critically important to our continued success.

Public Policy Tags: Intellectual Property