The U.S. Intellectual Property Enforcement Coordinator, Victoria Espinel, recently released her first annual report (large PDF).

Ms. Espinel has accomplished a lot in just one year on the job. She has brought energy and clarity to enforcement strategy from the government and to renewed efforts from law enforcement. She has raised awareness of counterfeiting issues. And she has helped various parts of the government work on communicating and coordinating with each other.

President Obama has noted on several occasions recently how innovation by U.S. businesses is one of the keys to growing the economy and making restoring American success. See his 2011 State of the Union speech and his talk to the U.S. Chamber of Commerce. He has cited intellectual property as one of America’s core assets and exports.

What I find missing in this discussion, and particularly in Ms. Espinel’s report, is any discussion of balance – of any checks on the system to ensure that law enforcement, government agencies, and businesses do not overreach in seeking to enforce the intellectual property rights. There is no discussion of the potential harm cause by such over-enforcement, or of the issues small businesses face defending themselves in enforcement actions small businesses or affording be enforcers.

In crafting the White House’s policy, law enforcement strategies, and other intellectual property issues, I fear that the voice of small businesses is not heard.

For example:

  • Vice President Biden recently hosted a discussion with administration officials include Ms. Espinel, Attorney General Holder, and Secretary of Commerce Gary Locke, and business leaders.  The list of attendees was reported as:
    • Administration officials:
    • Attorney General Eric Holder
    • Secretary of Commerce Gary Locke
    • Valerie Jarrett, Senior Advisor to the President
    • Jack Lew, Director, Office of Management and Budget
    • Victoria Espinel, U.S. Intellectual Property Enforcement Coordinator
    • John Morton, Director, Immigration and Customs Enforcement, U.S. Department of Homeland Security
    • Ambassador Phil Verveer, Coordinator for International Communications and Information Policy, U.S. Department of State
    • Aneesh Chopra, Chief Technology Officer of the United States
    • Margaret Hamburg, Commissioner of Food and Drugs, U.S. Department of Health and Human Services
    • David Kappos, Under Secretary of Commerce for Intellectual Property and Director, U.S. Patent and Trademark Office
    • Alan Hoffman, Deputy Chief of Staff, Office of the Vice President
    • Jason Furman, Deputy Director, National Economic Council
    • Business:
    • Carl Bass, President and CEO, Autodesk
    • John Lechleiter, President and CEO, Eli Lilly
    • Thomas Rothman, Co-Chairman and CEO, Fox Filmed Entertainment
    • Ajay Banga, President and CEO, Mastercard
    • Glen Barros, President and CEO, Concord Records
    • Paul Almeida, President, Department of Professional Employees, AFL-CIO
    • Ivan Seidenberg, Chairman and CEO, Verizon
    • Gigi Sohn, President, Public Knowledge
    • Of the 6 businesses, at least 5 are on the Fortune 1000 (Fox, Autodesk, Eli Lilly, Mastercard, and Verizon) and 4 are probably in the Fortune 100.
  • The 2010 U.S. INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR ANNUAL REPORT ON INTELLECTUAL PROPERTY ENFORCEMENT produced by Ms. Espinel’s office mentions “small business” a handful of times in its 90 pages, but mostly in regards to provide them with information and nothing to do with substantive policy interests.
  • Espinel’s blog post announcing the Annual Report also speaks only of enforcement actions, nothing of balance or of crafting an overall policy that represents interests of small businesses and big businesses.
  • President Obama last week issued an Executive Order called “The Establishment of the Intellectual Property Enforcement Advisory Committees,” establishing two intellectual property enforcement advisory committees designed to improve the Federal Government’s intellectual property enforcement efforts. The representatives are all agency officials and both committees are chaired by Ms. Espinel. There is little, if any, checks or balances to the work of the committees. The committees sole functions thus seem to be more enforcement. There is nothing wrong with more enforcement, as long as it complies with the laws and recognizes the harm done by over-enforcement, unjustified threats of infringements and baseless infringement claims.

According to, small businesses

  • Represent 99.7 percent of all employer firms.
  • Employ just over half of all private sector employees.
  • Have generated 64 percent of net new jobs over the past 15 years.
  • Create more than half of the nonfarm private gross domestic product (GDP).
  • Produce 13 times more patents per employee than large patenting firms; these patents are twice as likely as large firm patents to be among the one percent most cited.

Yet they are noticeably absent from government policies to protect and enforce intellectual property rights.

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