2017 Special 301 report

US trading partners assessed

This time of year sees the US issue its Special 301 IP assessment of trading partners, and the Priority Watch List (PWL) which lists countries not doing enough to seriously protect IPRs. In SE Asia, Thailand and Indonesia remain listed. In previous years Vietnam and Philippines have both appeared, but now they appear on the lesser Watch List. That is perhaps a reflection of the steps taken to progress, and level of commitment, and not an actual comparison. 

For Indonesia the main problem is that “IP enforcement has been insufficient and Indonesia still has not issued long-awaited regulations confirming ex officio authority for border enforcement”. Widespread counterfeiting, especially of dangerous goods with no deterrent is raised as a basic concern. There is a lack of coordination across the various Ministries with IP responsibility and the US Trade Representative encourages the formation of a dedicated IP team within the country's police to tackle serious criminal complaints.

Thailand is perhaps a surprising inclusion given how much more developed its basic IP systems are than say Indonesia. But this illustrates the Special 301 review’s subtle approach. The focus shifts to more complex and technical issues – poor landlord liability provisions, a patent backlog, unlicensed software, lengthy civil IP trials and lack of high damages awards. Thailand does have an IP Roadmap and a National IP committee and a number of improvements are recognised, such as steps to reduce the patent backlog and the large number of criminal IP cases that do occur.

All of this reflects an IP reality that you must first get the basics of IP enforcement right, and only then can you make progress at effective technology protection, using patents, trade secrets copyright and the like.