What anti-counterfeiting laws are in the pipeline? A must read. Podcast >>

November 25, 2011

On the eve of this month's Senate hearings on counterfeit electronics in U.S. combat systems, Senator Carl Levin indicated the new laws may be on the books, and perhaps very quickly.   At a November 7 press briefing, Senator Levin revealed the Committee is considering adding language to the defense authorization act for 2012 that would hold contractors responsible for the costs of replacing a part that is discovered to be counterfeit.

Added as a rider, new legislation could be on the books possibly within weeks, that will surely impact electronics and other companies.  

For example, Levin suggested that legislation may include requiring inspections at our ports of all shipments of Chinese electronic parts to ensure that they are legitimate. The costs of these inspections would be borne by shippers, as is the case with other types of border inspections.

The legislation may also define a counterfeit part for the first time, laying the groundwork for legally actionable steps.

   Victoria Espinel

But in the somewhat longer run, what can companies expect from new anti-counterfeiting legislation?

In The White House Blog of  March 11, 2011  Victoria Espinel, the US Intellectual Property Enforcement Coordinator, gives us good insight, recommending a series of very specific anti-counterfeiting laws.  Some highlights:

• Pharma and related companies would be required to adopt a track-and-trace system
   
• Guideline ranges would be increased when infringing products are knowingly sold for use in national defense, national security, critical infrastructure, or by law enforcement.
   
• "Permit relief when someone who unknowingly and unintentionally acquires infringing products voluntarily discloses them to CBP before becoming aware of any CBP enforcement action or a law enforcement investigation." [Note the implication that "relief" would not be forthcoming if infringing products were not disclosed.  Technology for authenticating products, such as ADNA's DNA marking and authentication systems, could become, in this way, the only avenue to escape culpability --Ed.).
   
• Guideline ranges would be increased for intellectual property offenses that risk death or serious bodily injury and for those offense involving counterfeit drugs (even when those offenses do not present that risk)
   
• The Department of Homeland Security (DHS),  including its component  U.S. Customes and Border Security agency, to share pre-seizure information about, and samples of, products and devices with rightholders.  The point: to help DHS to determine whether the products are infringing or the devices are circumvention devices.  Again authentication technology will be necessary to fulfill this requirement.

In this podcast, Espinel, who has overseen the recent VisionTech and other arrests, is interviewed by America Abroad reporter Deborah Amos.  

Or click here for podcast on America Abroad.