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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. 


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-Lay-Person's Guide to the 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.


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.”   


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.

General Counsel Kerry addresses the 2011 State of the Net Conference

On January 18, 2011, DOC General Counsel Kerry delivered keynote remarks at the seventh annual State of the Net Conference hosted by the Congressional Internet Caucus Advisory Committee.  The conference is one of the largest information technology policy conference in the U.S. and provides a venue for academics, consumer groups, industry and government to hear from policy experts from across the spectrum of information technology issues and to interact in a bi-partisan environment.

In his remarks, General Counsel Kerry highlighted key policy recommendations from the Commerce Department’s recently released  policy green paper “Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework.” These policy recommendations aim to promote consumer privacy online while ensuring the Internet remains a platform that spurs innovation, job creation, and economic growth.  Recommendations included: establishing Fair Information Practice Principles comparable to a “privacy bill of rights” for online consumers; developing enforceable privacy codes of conduct in specific sectors with multi-stakeholder input; and engaging the international community to encourage global Interoperability. The Department is seeking additional public comment on the privacy paper to further the policy discussion and ensure the framework benefits all stakeholders in the Internet economy. Comments are due January 28th.


2010 Distinguished Service Award

General Counsel Kerry and Deputy General Counsel Washington presented the Office of General Counsel Distinguished Service Award to 27 members of the office.  The recipients were recognized for an array of accomplishments.  Those recipients are:

The 2010 Joint Commission on Commerce and Trade

On December 14 and 15, Commerce Secretary Locke and U.S. Trade Representative Kirk, together with Chinese Vice Premier Wang Qishan, co-chaired the 21st annual U.S.-China Joint Commission on Commerce and Trade (JCCT) in Washington, DC.  General Counsel Kerry participated in this year’s JCCT, which covered a range of issues and yielded positive results, particularly China’s commitments to enhance its enforcement of intellectual property rights, adopt non-discriminatory government procurement policies, and collaborate with the U.S. in areas of emerging technology such as Smart Grid.  China’s commitments will lead to increased opportunities for U.S. exporters and a more level playing field for U.S. companies operating in China.   

General Counsel Kerry led the U.S. delegation’s work on commercial law cooperation.  In this area, the two sides agreed to continue to promote mutual understanding of commercial legal developments impacting U.S.-China trade.  The primary vehicle for this cooperation is the U.S.-China Legal Exchange, which GC Kerry co-leads.  The United States and China agreed to convene the 2011 Legal Exchange in the United States in cities and on topics to be determined by mutual agreement.  This builds upon the work of GC Kerry, Chinese Deputy International Trade Representative Chong Quan, and Legislative Affairs Office of the State Council Vice-Minister An Jian, who successfully led the 2010 U.S.-China Legal Exchange to Hangzhou (October 18), Wuhan (October 20), and Chengdu (October 22), which focused on U.S. export promotion activities and trade remedies laws and practices. 

Read more about Commerce’s participation here.