“The American IDEA Act promises to take important
steps to protect U.S. companies from foreign IP
theft.”

Intellectual property (IP) theft has severe consequences for
U.S. business, and many companies—particularly small
businesses—can feel overwhelmed at the seemingly
insurmountable task of stopping IP theft that occurs overseas.
Introduced by Senators Tammy Baldwin (D-WI) and John Cornyn (R-TX)
earlier this summer, the American IP Defense and Enforcement
Advancement Act, or the “American IDEA Act,” promises to protect
U.S. businesses against international IP theft. It is not to be
confused with the Inventor Diversity for Economic Advancement (IDEA)
Act, which aims to improve demographic data-gathering efforts
at the U.S. Patent and Trademark Office (USPTO).

The bill, introduced on July 27, 2023, proposes to fund law
enforcement agencies to improve IP enforcement, to direct studies
on how to protect U.S. IP, and to support legal aid programs to
assist small businesses in protecting their intellectual property.
Additionally, the Act would strengthen existing laws, in part by
reauthorizing certain provisions of the Prioritizing Resources and
Organization for Intellectual Property Act of 2008 (“PRO-IP
Act”) (15 U.S.C. §§ 8111-8116), which enhanced
remedies for violations of intellectual property laws. The PRO-IP
Act was also a bipartisan bill, and the American IDEA Act shows
that IP protection continues to find support on both sides of the
aisle.

Strengthening Current Agencies

The PRO-IP Act of 2008 established the Office of the
Intellectual Property Coordinator (IPEC), a position to coordinate
federal efforts against counterfeiting and IP infringement. IPEC is
responsible for the coordination and development of a joint
strategic plan against counterfeiting and infringement, which the
American IDEA Act would expand to include actions specific to IP
theft in certain priority countries. Specifically, the American
IDEA Act would make explicit a requirement for the plan to address
and include strategies to prevent the “unlawful taking or use
of intellectual property from corporations and universities located
in the United States, particularly by entities or individuals
located in a priority watch list country.”

Watch List Countries are designated every year in a special report by the U.S. Trade
Representative (USTR) and identify the U.S. trading partners who
present the most significant concerns regarding insufficient IP
protection and enforcement. This year, the priority countries
identified were Argentina, Chile, China, India, Indonesia, Russia,
and Venezuela. The USTR considers new and evolving factors in
creating its annual list. For instance, Belarus was added to the
2023 Watch List in response to a recent law there that legalized
unlicensed use of certain copyrighted works if the right holder is
from a foreign state “committing unfriendly actions,”
which include sanctioning Belarus for its role in Russia’s
unprovoked invasion of Ukraine. As multiple IP right holders
discovered in the last year and a half, protections for brands from
countries “unfriendly” to Russia have been met with
disregard in that country, and the USTR now notes that this is
likely to occur in Belarus as well.

In addition to targeting foreign countries in combating IP
infringement, the American IDEA Act would also fund local law
enforcement as part of an Intellectual Property Enforcement Program
under 34 USCS § 30103. The program would allow the Department
of Justice to offer grants to eligible state or local law
enforcement entities “to aid in the training, prevention,
enforcement, and prosecution of intellectual property theft and
infringement crimes.” This would include facilitating
coordination between state and local law enforcement officers and
prosecutors and Federal law enforcement agencies in the enforcement
of intellectual property laws.

Facilitating Pro-IP Studies and Programs

Beyond enhancing existing laws, the American IDEA Act would
authorize two new Government Accountability Office (GAO) studies.
One would assess how the Federal Government could better protect
the intellectual property of manufacturers in priority watch list
countries. The other would study whether the Federal Government
could use diplomatic and trade channels to improve IP protections
in watch list countries and evaluate how to better recover
financial losses suffered by U.S. individuals and businesses
resulting from a denial of adequate and effective IP protection in
those countries.

Finally, the American IDEA Act would create a grant program
specifically to fund legal aid programs to assist small businesses
in protecting their intellectual property. The grant would make
funds available to any American Bar Association-accredited law
school, state bar association, or legal services organization
providing no-cost or low-cost legal advice on the protection and
enforcement of intellectual property rights to small businesses
with an estimated annual revenue of not more than $150,000. The
program would also fund the development and delivery of training
programs and materials for small businesses relating to the
protection and enforcement of intellectual property rights.

But Don’t Wait on Legislation

The American IDEA Act promises to take important steps to
protect U.S. companies from foreign IP theft. However, even if the
bill passes, it will take time to see what comes of the newly
focused IPEC strategic plan, the local law enforcement initiatives,
the GAO studies, or the new legal aid programs. For that reason, it
is important for U.S. companies-and in particular small
businesses-to know that they can take immediate steps today in
order to be proactive about protecting their IP. These steps
include registering their trademarks, copyrights, and patents both
in the United States and overseas, recording their marks with U.S.
Customs and Border Control to stop counterfeit imports, maintaining
brand watches and monitoring services to detect infringing parties,
and implementing robust measures to protect any trade secrets. By
taking proactive measures to protect their IP, businesses can
insulate themselves against the financial and reputational damage
that can result from IP theft.

Originally published by IPWatchdog.

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