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IP Commission Report

 

1. What is the IP Commission’s Report?

A blue-ribbon panel issued a report on Wednesday focusing on trade secret theft by China and urging a number of executive and legislative reforms, including enactment of a federal trade secrets statute and providing American companies with some limited right to "hack back" against those that launch cyberattacks against them.

2. Why the IP Commission issued such a report?

 

For those that have been following these issues, the report relies on many of the statistics and developments that are by now considered to be conventional wisdom or accepted as true: $300 billion estimated annual losses due to foreign trade secret and cybertheft, drag on U.S. GDP growth, American job losses, and corrosion of the incentives to innovate, among others.

3. What solutions have been advocated in the IP Commission Report?

The most important legislative reform proposed in the report is the very first one -- the call for an amendment to the Economic Espionage Act (EEA) to provide for a private right of action to allow companies and businesses to sue for the theft of their trade secrets. Rather, the report focuses on the practical reasons that require that legislation: over-burdened federal prosecutors who lack the resources to pursue these actions under the EEA and the jurisdictional and evidentiary limitations of state court actions that may frustrate the ability of companies to protect their trade secrets overseas.

The Commission also recommends that the EEA be amended so that the Federal Circuit would serve as the Federal Court of Appeals for all federal trade secret actions, "since it serves as the appellate court for nearly all IP-related cases and thus has a high degree of competency on IP issues."

Finally, the Commission advocates two noteworthy but controversial cyber proposals. It supports the present Cyber Intelligence Sharing Protection Act (CISPA) that has passed the House of Representatives but faces opposition within the Senate and by the Obama Administration on privacy grounds.

 

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