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Blog Category: Office of General Counsel

CLDP's 20th Anniversary Event

GC Kerry moderating a discussion at the CLDP 20th Anniversary Event

The Commercial Law Development Program (CLDP) was created in February, 1992 and on February 23, 2012, the Office of the General Counsel hosted an event to thank the institutions and the individuals who created CLDP and/or helped it grow, and to reflect on lessons learned. General Counsel Kerry presented awards to several USG officials and private sector experts who have made important contributions to CLDP programs and to the strengthening of the rule of law worldwide.

In a discussion moderated by General Counsel Cameron F. Kerry, Judge Bernice B. Donald from the US Court of Appeals for the 6th Circuit, and Judge Delissa Ridgway from the US Court of International Trade, reflected on their experiences doing work for CLDP in many countries over the years. Both judges concluded that the judicial capacity building programs conducted by CLDP have resulted in two significant changes: foreign judges now realize that they can play a significant role in the economic development of their countries; they have now the expertise and the confidence to help bring about the judicial environment, adapted to their country’s specific context, that are conducive to foreign investment and trade.

The program also featured remarks by Commerce Secretary Bryson on the importance of a modern and fair commercial law environment for US firms that export or invest overseas, by Ambassador William Taylor, Special Coordinator for Middle East Transitions at the US Department of State, on CLDP’s ability to respond promptly to State’s priorities for technical assistance in commercial law, and by Linda Wells, founder of CLDP, on the genesis and growth of the program.

General Counsel Kerry Amplifies President Obama’s Consumer Privacy Protection Message in Europe

by Cameron F. Kerry

As co-chair of the National Science and Technology Council Subcommittee on Privacy and Internet Policy, I am proud to have worked on the Obama administration’s comprehensive blueprint to improve consumer privacy protections, the "Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy" (PDF).  As the president stated in the report, “we must reject the conclusion that privacy is an outmoded value.  It has been at the heart of our democracy from its inception, and we need it now more than ever.”

This is the message I took to European lawmakers, officials, and businesses about the administration’s privacy policy framework. Central to the framework is the tenet that consumers who have confidence their privacy is respected are more likely to express themselves online, engage in commercial activity, and form social connections on the Internet. Consumer trust is essential for a strong digital economy, which in turn provides a platform for greater innovation and job creation.

In today’s Internet age, our world is no longer easily defined by national borders.  Information flows around the world as companies seek to meet the demands of international customers and individuals share their lives and experiences globally. Finding ways to protect personal information while facilitating cross-border data flows is a central aim of the administration’s privacy blueprint.

Over the course of my meetings in Europe, I talked about the president’s Consumer Privacy Bill of Rights and our commitment to promote the free flow of information by fostering the interoperability of international privacy frameworks. I discussed the importance of building on tools such as the EU-US Safe Harbor Framework that have helped to protect consumer information while facilitating international trade.

I look forward to continuing our work at the Department of Commerce to implement the administration’s privacy blueprint. Last week, the National Telecommunications and Information Administration released a request for comments as it prepares to begin convening stakeholders to develop codes of conduct based on the Consumer Bill of Rights, and on March 19 the EU's Justice Directorate General will come to Washington, D.C. to discuss the Safe Harbor Framework and other tools for the global flow of information.

Guidance Published on Implementation of Administration Policy on Scientific Integrity

On December 16, 2011 General Counsel Kerry updated the June 15th memorandum implementing the Administration Policy on Scientific Integrity.  The update provides additional guidance consistent with the policy recommendations of Dr. John Holdren, Director of the White House Office of Science and Technology Policy (OSTP), who issued an Administration policy on scientific integrity, implementing a Presidential memorandum of March 9, 2009.  In particular, the memorandum provides additional direction on federal advisory committees and expands upon the Department's support for scientists and engineers to participate and provide leadership in scientific and professional organizations.  This memorandum establishes policy directives for the Department of Commerce to ensure the highest integrity of science and scientific products developed and utilized by the Department and its bureaus.  The updated memorandum and the June 15th memorandum are attached below.


2011 Office of General Counsel Awards

General Counsel Kerry

On Monday, December 12. 2011 General Counsel Kerry presided over the Office of General Counsel Annual Awards Ceremony.  He was joined by Secretary Bryson who delivered remarks, thanking the office for their tireless work over the past year.  The Secretary acknowledged the great assistant that the office’s attorneys and support staff have provided to him since his start at Commerce and he looks forward to working closely with the staff.  He introduced GC Kerry, who detailed the broad range of accomplishments achieved by OGC office over the past year.  He highlighted the successful completion of Patent Reform and the successful litigation of the Supreme Court Case Golan v. Holder (10-545 [1]).  He also applauded OGC’s contributions to various other litigation matters as well as works in enforcing fisheries regulations and export controls.

GC Kerry and Deputy General Counsel Geovette Washington presented the Attorney of the Year Awards and the Support Staff of the Year Award.  The 2011 recipients are:

Attorney of the Year - Robert McManus – U.S. Patent and Trademark Office

Robert significantly advanced the goals both of the USPTO and the Department to establish a strong patent system.  Thanks to his efforts at the Supreme Court, the Court adopted the Department's position which has been haled as resulting in stronger and more reliable patent rights.  Robert was also instrumental in a wholesale re-writing of the rules governing how appeals are conducted at the USPTO Patent Trial and Appeal Board which will lead to more efficient review of patent applications.  Robert routinely provides expert advice under tight deadlines on complicated matters.

Support Staff of the Year - Debra Ketchopulos – National Oceanic & Atmospheric Administration

Debra provided crucial support to the Gloucester's Enforcement Section office maintaining continuity of operations in that region in the absence of any enforcement attorneys for most of the year.  During this time, she continued to coordinate enforcement matters with the Office for Law Enforcement, fielding as many inquiries herself as possible, while judiciously referring others to headquarters for resolution.  Debra also responded to a large number of requests for case information from the Special Master who was appointed by the Secretary of Commerce to review fisheries enforcement, thereby greatly enhancing the Special Master's ability to timely complete his review.  After 34 years of support to the NOAA Office of the General Counsel, she continues to be cited by colleagues at all levels for her exceptional performance and willingness to take on new tasks and increased responsibilities.

Cameron Kerry delivers keynote address to Second Annual European Data Protection and Privacy Conference

Cameron Kerry delivered one of the keynote addresses to the Second Annual European Data Protection and Privacy Conference on December 6 in Brussels, Belgium. His address, entitled Transatlantic Solutions for Data Privacy, explained the Obama administration's framework for how to protect consumer data privacy while promoting innovation in the global digital economy. This framework refines the ideas first expressed in the green paper released last year.

The Leahy-Smith America Invents Act (AIA)

On September 8, the Senate passed the Leahy-Smith America Invents Act (AIA), H.R. 1249, by a vote of 89-9.  The bill now will be sent to the President for his signature.

This legislation has been a major priority of the Department of Commerce and the Office of General Counsel since the beginning of this Administration.  The AIA marks the first comprehensive reform to U.S. patent law in 60 years and transforms the patent system to accommodate the needs of 21st Century inventors and businesses. 

At a time of great need for the U.S. economy, the AIA will foster American innovation, provide greater certainty to businesses and inventors, and promote job growth.  Fundamental changes to the patent system made by the legislation include:

  • Establishing a “first-inventor-to-file,” which will simplify the U.S. patent application system and harmonize it with others around the world;
  • Providing the opportunity for third parties to submit information regarding pending patent applications and creating a post-grant opposition proceeding to identify patents that should not have been granted.  Both these changes will improve patent quality, which will promote investment and job growth;
  • Improving the system to administratively challenge patents, which will speed adjudication of meritorious challenges and provide faster resolution and certainty for patent holders facing unsubstantiated challenges; and
  • Reducing fees for small and micro-entities by as much as 75%, which will foster innovation.

The AIA requires a series of rulemakings and studies, which will need to be completed expeditiously.  The Office of General Counsel will be working with the U.S. Patent and Trademark Office to complete the work as quickly as possible and to bring the benefits of the legislation to consumers and businesses alike.  Implementation Effort

General Counsel Kerry travels to China for the US-China Joint Liaison Group Anti-Corruption Working Group

General Counsel Kerry in China

During the week of July 25th, General Counsel Kerry travelled to Beijing to continue discussions with China on the shared goal of addressing bribery of foreign government officials by U.S. and Chinese companies.  Following extensive dialogue led by General Counsel Kerry, China amended its criminal code earlier this year to criminalize the bribery of foreign government officials.  The United States has criminalized such conduct since 1977 through the Foreign Corrupt Practices Act (FCPA). 

Now General Counsel Kerry and an interagency team, including representatives of the Departments of Justice and State and the Securities and Exchange Commission, are sharing with Chinese officials how the United States has implemented and enforced the FCPA and are seeking to encourage China to publicize, fully implement, and rigorously enforce their new law.   The discussions, held under the auspices of the U.S.-China Joint Liaison Group Anti-Corruption Working Group, also included a roundtable in which U.S. and Chinese companies exchanged ideas about how they prevent and detect corrupt payments to foreign officials through compliance programs within their enterprises. 

When opening the roundtable, General Counsel Kerry stressed the need for government and industry to work together in combating transnational bribery, stating: "A legal regime criminalizing transnational bribery can only be effective when the government and industry work together by incentivizing compliance, instituting strong and effective international compliance and ethics programs, and maintaining and applying deterrent penalties."  Opening Remarks

While in Beijing, General Counsel Kerry also met with Ministry of Commerce officials, representatives of the U.S. private sector, and other U.S. and Chinese officials to discuss commercial law issues and intellectual property rights protection and enforcement. 


United States Department of Commerce Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations

This blog post is about an older plan. The United States Department of Commerce Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations at the end of FY 2013 is available here.

The current FY 2011 Continuing Resolution may expire without new budget authority. While it is not anticipated that there will be a lapse in appropriations, the Department must be prepared for a potential lapse in funding that would necessitate a significant reduction in operations.

Prior to a potential lapse in funding, the Office of Management and Budget (OMB) requires the Department to submit a draft plan for agency operations in the absence of appropriations (a "shutdown plan"). This plan will likely be modified with additional guidance from the Office of Personnel Management and OMB, as the situation develops, and may be changed by the Department, as circumstances warrant.

This plan complies with the guidance provided by the Office of Management and Budget, the Department of Justice and the Department of Commerce.


General Counsel Kerry on Promoting Ethical Businesses Internationally

General Counsel Kerry at the OECD Event in Washington DC by Elodie Turchi of the OECD

On March 22, 2011, DOC General Counsel Kerry spoke at a symposium titled “Toward Coherence in International Economic Law:  Perspectives at the 50th Anniversary of the OECD” regarding the Administration’s work in promoting ethical conduct by international businesses.  The symposium took place in Washington, DC, and was sponsored by the Organization for Economic Cooperation and Development, the American Society of International Law, and the George Washington International Law Review, in cooperation with the International Law Students Association. 

In his remarks, General Counsel Kerry highlighted the work of the Department of Commerce and other U.S. agencies to fight corruption in international business transactions, noting President Obama’s linking of corruption, human rights, and well being, and Secretary Locke’s views about corruption as a barrier to U.S. economic growth.  He discussed the Justice Department’s emphasis on enforcement of the Foreign Corrupt Practices Act, the Commerce Department’s engagement with the private sector, his upcoming trip to Doha for a regional conference on integrity in the private sector put on by the Commerce Department’s Commercial Law Development Program, and Commerce’s work (with the Departments of State and Justice) in pressing foreign governments to enact and enforce strong anti-bribery laws.  He was joined on the panel by Assistant Secretary of State Jose Fernandez and NGO and private sector representatives. 

General Counsel Kerry said:  “This Administration is dedicated to striking the right balance between fostering commerce and promoting good conduct by the business community.  I don’t see this as a trade-off.  I think we can have both, and that we should have both. We will keep striving to have both.”