EU identifies IPRs as trade barrier with US

The IPKat learns from IPWatch that the European Commission has issued a report highlighting trade barriers between the US and the EU. After stressing the closeness of the EU/US trade relationship, the report explains its purpose thus:
This annual report on U.S. trade barriers from the European Commission highlights some of the impediments that the European Union encounters when doing business with the U.S. The barriers described range from the small and relatively easily addressed to larger, more complicated problems, including challenging regulatory questions and some issues that have been or are being litigated at the World Trade Organisation. No matter the size or economic impact, all barriers need to be addressed, as far as possible, to help maintain and strengthen both transatlantic confidence and broader faith in the multilateral trading system.
Included are a number of IP-related trade barriers, namely:
  • The US exemption for small businesses from paying copyright royalties (even though the US has lost a WTO case on the issue
  • The lack of broadcast rights for producers and performers under US law (even though such rights are afforded to their US counterparts under EU law)
  • Difficulties regarding GIs, particularly various European wine names classed as 'semi-generics' in the US
  • Failure to inform patentees when the US authorities are going to use a patent
  • s.337 of the Tariff Act 1930, which allows the owners of US IP rights to keep infringing articles out of the US
  • The Havana Club case, whereby trade marks identical or similar to those owned by confiscated Cuban entities cannot be registered or renewed
  • The US's first-to-invent patent system (though the report notes that the US is becoming more accepting of the first-to-file system)
  • The Hilmer doctrine (excluding certain European prior art)
  • Differences in patentability of business methods and computer software
  • Differences concerning encryption products
  • Strictures involving US plant variety rights
The IPKat reckons that these barriers are common knowledge. The impact comes from gathering them all together and placing them in the wider context of trade relations.
EU identifies IPRs as trade barrier with US EU identifies IPRs as trade barrier with US Reviewed by Anonymous on Friday, July 31, 2009 Rating: 5


  1. One wonders whether the same people would consider

    * The lack of a proper fair-use system
    * The economically counterproductive institution of database rights

    as similar trade barriers on the European side?

    ... more could probably be added.

  2. I think that European Commission certainly is onto something with the fifth point, which relates to the possibility to get injunctions against infringing imported goods through the US' International Trade Commission, rather than through a court. As, since eBay vs. MercExchange, it has become rather difficult to get injunctions against infringing goods through the normal court system, whereas the ITC is reckoned to be a comparatively "soft touch", foreign goods are clearly disadvantaged. I wonder how much longer it will take until somebody brings this to the WTO's attention.


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