USPTO Passes on Request to Review ACTA Provisions that May Conflict with US Law

Mike Palmedo
November 22, 2010

The Office of the U.S. Trade Representative (USTR) argues that nothing in the Anticounterfeiting Trade Agreement (ACTA) will conflict with U.S. law.  Therefore, it believes that the Obama Administration can implement ACTA as a "sole executive agreement" without Congressional approval.  Last month, Senators Sanders and Brown set a letter to US Patent and Trademark Office (USPTO) Under Secretary David Kappos asking for a review of ACTA provisions that could conflict with U.S. Law.

On November 12, 2010, Under Secretary Kappos responded to their request with a very brief letter that did not address their questions.   The letter simply acknowledged that USPTO "has been advising the Office of the United States Trade Representative in its efforts to meet the Administration's goal of achieving a state-of-the-art international framework that provides a model for effectively combating global proliferation of commercial-scale counterfeiting and piracy in the 21st century and is consistent with U.S. law."  It also says that USPTO has "shared your letter with the USTR for response."

A story by Adam Behsudi in Inside U.S. Trade quotes an unnamed source who says that  "USPTO has completed an analysis that found inconsistencies between the ACTA and U.S. law, which may have informed the changes the U.S. and the European Union worked out in a compromise that has now been adopted by all ACTA members. ...USPTO did not want to release its findings because it could nullify the ACTA's standing as a sole executive agreement, which does not require approval from the Congress. Similarly, Sen. Ron Wyden (D-OR) has not released an assessment of the Congressional Research Service whether the ACTA complies with U.S. law."


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