IP Law Daily, INDUSTRY NEWS: USTR releases 2023 Special 301 Report on IP protection and enforcement, (May 1, 2023)

By Linda O’Brien, J.D., LL.M.

29 countries were placed on the watch list; Argentina, Chile, China, India, Indonesia, Russia, and Venezuela will be subject to particularly intense bilateral engagement in the coming year.

The Office of the U.S. Trade Representative (USTR) on April 26 released the 2023 Special 301 Report on the adequacy and effectiveness of U.S. trading partners’ protection and enforcement of intellectual property (IP) rights. The USTR noted that its review of Ukraine has been suspended due to Russia’s invasion of Ukraine in February 2022. The Report also highlighted that, as part of the Biden’s administration’s effort to combat the COVID-19 pandemic, the U.S. supported negotiations that resulted in the World Trade Organization issuing two Ministerial Decisions in June 2022.

“Innovation and creativity are at the heart of American competitiveness. That is why the Biden-Harris Administration’s new story on trade includes lifting up the 60 million jobs and workers in our IP-intensive industries through robust IP protection and enforcement in foreign countries,” Ambassador Katherine Tai said in a press release introducing the Report.

The Special 301 Report is the result of an annual review of the global state of IP protection and enforcement of U.S. trading partners around the world. The USTR conducts this review pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act enacted in 1994. The Report identifies foreign countries and the laws, policies, and practices that fail to provide adequate and effective IP protection and enforcement for U.S. inventors, creators, brands, manufacturers, and service providers.

The USTR reviewed more than 100 trading partners for the 2023 Special 301 Report and placed 29 of them on the Priority Watch List or Watch List. Section II of the Report is a detailed, country-by-country discussion for each country on the watch lists. Seven countries—Argentina, Chile, China, India, Indonesia, Russia, and Venezuela—have been placed on the Priority Watch List. Twenty-two trading partners are on the Watch List: Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Mexico, Pakistan, Paraguay, Peru, Thailand, Trinidad & Tobago, Turkey, Turkmenistan, Uzbekistan, and Vietnam.

The Report discusses a wide range of concerns, including: (1) challenges with border and criminal enforcement against counterfeits; (2) high levels of online and broadcast piracy; (3) inadequacies in trade secret protection and enforcement in China, Russia, and elsewhere; (4) troubling “indigenous innovation” and forced or pressured technology transfer policies that may unfairly disadvantage U.S. right holders in markets abroad; and (5) other ongoing, systemic issues regarding IP protection and enforcement, as well as market access, in many trading partners around the world.

In this year’s Special 301 process, the USTR requested written submissions from the public through a notice published in the Federal Register on December 15, 2022. The USTR received submissions from 71 non-government stakeholders and 17 foreign governments. The submissions filed in response to the Federal Register notice are available here.

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