Thursday, September 8, 2011

Washington Declaration on Intellectual Property and the Public Interest

What do over 180 experts from 35 countries agree is the most pressing global issue for intellectual property policy? The Washington Declaration on Intellectual Property and the Public Interest, which was formulated at the Global Congress on Intellectual Property and the Public Interest from August 25-27, 2011, reveals that changing the direction of negotiations on intellectual property rights in U.S. trade agreements is that issue. The Declaration criticizes an "unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders" through recent trade agreements. It calls for new efforts to "re-articulate the public interest dimension in intellectual property law and policy." The Declaration is now open to endorsement and comment.

I found particularly compelling the Declaration's statement that "intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation" because intellectual property affects a broad range of interests. Although the focus of the Declaration is on trade agreements, I could not help but wonder if such language might be a signal for the U.S. Court of Appeals for the Federal Circuit to relinquish its restrictions on the Patent and Trademark Office's ("PTO's") authority. As I have discussed in Part II.C.2. of my forthcoming article in the George Washington Law Review, "Administrative Law, Patents, and Distorted Rules," because the court views the Agency as lacking substantive rulemaking authority, the PTO does not need to comply with provisions of the Administrative Procedure Act that require agencies to provide the public with notice of and opportunities to comment on its proposed decisionmaking. Moreover, the substantive restriction on its authority gives it a perverse incentive not to solicit public participation. At least one Federal Circuit judge has viewed the Agency's willingness to voluntarily seek public input in its rulemaking as evidence that the Agency's rules were invalid substantive rules. Hopefully, the Declaration will raise attention to the need to cure defects in the patent system like this.

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