On the morning of Wednesday, May 25th, the U.S. Senate Committee on the Judiciary held a hearing to examine the nomination of three individuals who would serve within the executive branch of the Trump Administration if confirmed. One of those three nominees was Vishal J. Amin, President Trump’s choice to serve as Intellectual Property Enforcement Coordinator (IPEC) within the office of the President.
Amin’s nomination to serve as IPEC was encouraged by the U.S. Chamber of Commerce, which sent a letter in support of Amin to Senate judiciary chair Sen. Chuck Grassley (R-IA) and ranking Democrat member Sen. Dianne Feinstein (D-CA). The U.S. Chamber “urges the Committee to report his nomination without delay,” noting Amin’s extensive experience which includes former roles as senior counsel for the U.S. House Committee on the Judiciary as well as senior policy roles at the White House under former-President George W. Bush and at the U.S. Department of Commerce. The U.S. Chamber also said that it was “encouraged” that President Trump made the IPEC nomination a priority.
At the top of Amin’s prepared remarks delivered to the Senate judiciary committee, he noted the fact that the importance of protecting IP was made explicit by Article I, Section 8, Clause 8 of the U.S. Constitution, often referred to as “the IP clause.” Amin said that his first responsibility as IPEC, if confirmed, would be to work with the White House as well as senior leadership at relevant agencies and departments to ensure well-coordinated efforts as well as the effective and efficient use of resources. “We need to ask ourselves three important questions — What are we doing well? What isn’t working? And what should we be doing?” Amin’s remarks read. Second, Amin would use existing law enforcement tools in order to ensure IP laws are enforced and prevent counterfeit and infringing goods from entering the U.S. market by engaging with stakeholders and trading partners on those issues. Third, he would focus on developing an IP enforcement policy which addresses all sectors of intellectual property including patents, copyright, trademark and trade secrets.
At the top of the questioning period, Sen. Grassley asked Amin to identify the most significant threat to American IP at home and abroad. Amin’s answer to this was two-fold. First, from a law enforcement standpoint, key issues for IPEC would be preventing both online piracy and counterfeit goods. Second, in terms of trade enforcement, issues of creating market access for American producers and addressing rule of law concerns around the world, including localization requirements which disadvantage U.S. companies by forcing them to transfer technology or trade secrets to domestic firms to operate in certain markets.
An interesting moment developed during the hearing as Grassley moved on in questioning to Stephen Elliott Boyd, the nominee for assistant attorney general for legislative affairs. In expressing his frustrations over exceedingly long response times from government agencies, Grassley spoke about an example of one unnamed agency which was asked to turn over e-mails. “I shouldn’t even have to make a phone call to follow up on the letter,” Grassley said. “The bottom line of that phone call was, ‘Either you run your agency or it’s going to run you.’” Requested e-mails were turned over by the director, but Grassley’s frustrations were clear. “I had to have six meetings and excuse after excuse after excuse, and it basically added up to people within the agency did not want to make the agency look bad.” Grassley’s response also indicated that the agency director in question was female. It’s not clear that Grassley was speaking specifically about the U.S. Patent and Trademark Office at this moment, but the runaround he describes does seem to fit the agency’s mold of delayed responses to requests for information which are often heavily redacted when finally released.
Sen. Orrin Hatch (R-UT) said that intellectual property was a very important issue to him, noting that he had supported the enactment of the PRO-IP Act in 2008 which created the IPEC position and was involved in passage of the Defend Trade Secrets Act (DTSA). Hatch then went on to ask Amin if he would, as IPEC, commit to addressing patent trolls and supposed abuses of patent litigation. Small business startups and individual inventors might be encouraged to find out that Amin completely spoke past. Hatch’s point on patent trolls and instead redoubled his message that a well-functioning patent system was crucial to the American economy. Amin added that it was important for patents to be of high quality when issued.
Following Hatch was Sen. Chris Coons (D-DE), who began his questions with a focus on the various risks posed by counterfeit goods including health, safety and links to organized crime. Coons also cited former National Security Advisor (NSA) director Keith Alexander who called the theft of U.S. IP by Chinese entities “the greatest transfer of wealth in history.” Amin’s response spoke to the importance of voluntary initiatives to engage stakeholders, especially in the effort to curb online piracy. Coons added that he had concerns over whether IPEC had enough resources to properly execute its role in IP enforcement and told Amin to report back if it was the case that more resources were needed.
China’s theft of U.S. IP was a focus for Sen. Lindsey Graham (R-SC), who asked Amin whether China was the world’s largest offender in this regard. Amin called China a “significant issue” and said that China was at least among the top five sources of IP theft. Sen. Amy Klobuchar (D-MN) asked Amin how he intended to address such foreign theft of U.S. IP. Amin said that he’d focus on using existing trade tools and legal authorities to engage with governments and customs operations. For cyber theft, which Amin called an “incredibly important component of IP enforcement,” he said addressing that aspect would require close work with relevant agencies.
Sen. John Kennedy (R-LA) raised concerns over business laws in foreign jurisdictions which require American companies to transfer technologies to domestic firms in order to enter that country’s market. “Do you think we ought to reciprocate?” Kennedy asked. Amin called such enforced tech transfer a “serious concern” and acknowledged that some countries do engage in these practices, but in terms of actual policy he deferred to the position of the administration and the U.S. Trade Representative.
“Why would inventors worry about you?” That was a question asked of Amin by Sen. Thom Tillis (R-NC), who told Amin that he and others were trying to find “the sweet spot between frivolous patents and ones which are really the engine of innovation.” “We want to go after the trolls, but stay away from people who are creating the next great thing,” Tillis said. Despite Tillis’ focus on trolls, he said that he was interested in promoting strong IP enforcement, citing his views in this regard as a reason why he didn’t support the Trans-Pacific Partnership, especially for its potential effects on the biologics industry. “If our industries cannot protect IP over some time horizon, then their innovation is going to suffer,” Tillis said.
Sen. Ted Cruz (R-TX) was also interested in determining the proper balance between vigorous protection of IP rights and the prevention of frivolous, abusive litigation. Amin’s response spoke to the balance between ensuring that creators are protected while also growing the economy to create jobs. Cruz asked Amin if he could ensure the committee that he would work towards being a strong advocate for and defender of IP rights “not just for the big guys but also the small guys, the innovators of the next generation starting in garages.” “Absolutely,” replied Amin, who noted that it was precisely those small- and mid-size businesses which need the resources provided by strong IP rights to compete fairly against larger players.