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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.
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NOAA Joins with Federal, State, and Local Government Agencies to Announce Record Oil Spill Settlement and a Plan to Restore Damaged Natural Resources

Cosco Busan

The National Oceanic and Atmospheric Administration (NOAA) announced on September 19 a civil settlement with the owners and operators of a ship that struck the San Francisco-Oakland Bay Bridge in 2007 and spilled 53,000 gallons of oil into San Francisco Bay.  The event killed thousands of birds, impacted a significant portion of the Bay’s 2008 herring spawn, spoiled miles of shoreline habitat, and closed the Bay and area beaches to recreation and fishing.

Under the comprehensive settlement – the largest ever under the federal Oil Pollution Act – the owners and operators of the M/V Cosco Busan agreed to pay $44.4 million for natural resource damages and penalties and to reimburse federal, state, and local governments for the costs of responding to the spill.  The lion’s share of the settlement will be spent on projects that will restore the injured Bay Area resources and aid the public in enjoying them.

Along with the settlement, NOAA and its fellow federal and state natural resource trustee agencies announced the release of their draft plan to restore the resources injured by the spill.  The plan contains a suite of on-the-ground projects that will benefit birds, fish, shoreline habitats, and public recreational sites.  Since day one of the spill and throughout the injury assessment, settlement negotiations, and restoration planning process, the Department of Commerce has been and will remain actively involved through NOAA’s Office of General Counsel for Natural Resources, Restoration Center, Assessment and Restoration Division, and Office of National Marine Sanctuaries.  

More information on the settlement and the restoration plan is available here.

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. 

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Business Roundtable on the Foreign Corrupt Practices Act (FCPA)

By Cameron Kerry, General Counsel for the U.S. Department of Commerce.

On July 22, I had the opportunity to co-host, with my colleagues Assistant Attorney General for the Criminal Division Lanny Breuer and Securities and Exchange Commission Enforcement Director Robert Khuzami, a business roundtable on the Foreign Corrupt Practices Act.  The roundtable was an opportunity for interested companies to relate their individual experiences with and views on the FCPA, in keeping with recommendations the United States received from the Organization for Economic Cooperation and Development (OECD) Working Group on Bribery in its Phase 3 Report on U.S. implementation and enforcement of the Antibribery Convention, at:  OECD Phase 3 Report .

Over twenty company representatives from a wide range of business sectors, sizes, and geographic locations participated.  Participants were recommended by business associations with an interest in this area. We engaged in an open and constructive dialogue and many participants noted that U.S. business and the government must work together to fight international bribery and corruption in order to uphold the rule of law and support human rights. We heard an array of concerns, complaints, and compliments about the statute, its enforcement and related guidance, and I was encouraged by the large turnout, the frank conversation, and the clear dedication of all participants to address the corrosive impact of corruption on international commerce.

I’d like to thank each and every one of the business representatives for taking the time to attend the roundtable and their excellent participation. I invite all interested parties to visit the Commerce and DOJ websites for more information on the statute, such as the Lay-Person’s Guide to the FCPA, and our international efforts to level the playing field:

DOJ-FCPA

DOJ-Lay-Person's Guide to the FCPA

Commerce-FCPA

General Counsel Kerry Implements the Administration Policy on Scientific Integrity

General Counsel Kerry

On June 15, 2011, General Counsel Kerry implemented the Administration policy on scientific integrity by issuing a memorandum. The memorandum adopts 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. The OSTP memo requires executive Departments and agencies to develop scientific integrity policies that implement four broad principles:

  1. strengthen the foundations of scientific integrity;
  2. enhance openness and transparency in the communication of government science;
  3. guide the operation of federal advisory committees tasked with giving scientific advice, in line with a set of five specified criteria;
  4. promote the professional development of government scientists and engineers.

This memorandum adopts these directives as the policy of the Department of Commerce so as to ensure the highest integrity of science and scientific products developed and utilized by the Department and its bureaus.  The full memorandum can be found here Scientific Integrity Memorandum or attached below.

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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.”   

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Protecting Consumers & Promoting Innovation Online: A Call for Baseline Privacy Legislation

by Cameron Kerry, General Counsel for the U.S. Department of Commerce.

The time has come for Congress to pass strong Internet consumer privacy legislation that provides clear rules of the road for businesses and consumers while preserving the innovation and free flow of information that are hallmarks of the Internet economy.

That’s the Obama Administration’s conclusion based on the work we have been doing on commercial data privacy.  Three months ago, the Commerce Department published its Green Paper, which contained preliminary policy recommendations to enhance consumer protection and strengthen online trust, while ensuring the Web remains a platform for innovation, jobs, and economic growth.

The America Invents Act Will Address Patent Backlog, Improve Patent Quality

The Senate Judiciary Committee published the following statement about the America Invents Act.

WASHINGTON (Monday, March 7, 2011) – The Obama administration today released a white board presentation by Austan Goolsbee, the Chairman of the White House Council of Economic Advisors, touting the need for patent reform to help American inventors and innovators.  The America Invents Act, sponsored by Senator Patrick Leahy (D-Vt.), will make the first comprehensive reforms to the nation’s patent system in nearly 60 years.

“Chairman Goolsbee’s white board presentation highlights the very things the America Invents Act will address, including patent quality, reducing patent backlogs, and spurring innovation to create jobs,” said Leahy.

“We’ve talked about a whole lot of ways we’re going to win the future,” Goolsbee said in the presentation.  “We’ve got the greatest inventors in the world and it’s time we give them the help they need to bring the country where it needs to be.”

The Senate is poised to take another step toward a final vote on the America Invents Act, with a vote on a cloture motion to bring debate to an end scheduled for Monday evening. 

The America Invents Act is the result of nearly six years of debate in the Senate and House of Representatives.  It is supported by the Obama administration.  The bipartisan legislation was reintroduced earlier this Congress by Leahy, Senator Orrin Hatch (R-Utah) and Senator Chuck Grassley (R-Iowa).  For more information on the America Invents Act, click here.

To watch Chairman Goolsbee’s white board presentation, click here.