At this point the identity of the IP Czar seems to be a fairly poorly kept secret.  The identity of the candidate for the IP Czar position – Victoria Espinel, a former assistant trade rep for IP at USTR, apparently has been known for a few months.  But yet she has yet to be announced as the candidate. 

Why is that?  What’s the hold up?

Apparently, this being a new position, the Obama Administration is not sure where to house Ms. Espinel.  Since the IP Czar – which officially is referred to by the less-glamorous title of IP Enforcement Coordinator – is a position that must be confirmed by the Senate, the position apparently cannot reside in an agency or office headed by someone who does not need to be Senate-confirmed.  That leaves some limited options, including: 

• A stand-alone office.  While this is probably the most desirable in terms of making the position as prominent within the Administration as IP owners would like, it remains uphill battle.
• Office of Science and Technology Policy (OSTP).  OSTP is known for espousing views that are less then favorable to the IP community.  Placing the IP Czar within OSTP would make no more sense than coupling Oscar and Felix (or for a more modern reference, coupling Harry Potter with Voldemort).
• Office of Management and Budget (OMB).  If a stand-alone office is not in the cards than this may be the best alternative.  While OMB does not usually establish policy, it does coordinate with numerous agencies on various projects, which is certainly within the purview of the IP czar.

A decision on this matter is likely to come within the next few weeks.  So perhaps by the time Labor Day roles around we will have a better idea of where the IP Czar will be laboring.

In a previous blog entry I mentioned the recent letter by Senate Judiciary Committee leadership sent to the White House urging the  prompt appointment of someone to fill the newly create Intellectual Property Enforcement Coordinator (often referred to as the “IP Czar”) position.  While the two most frequently mentioned candidates for the position in the blogosphere are Shira Perlmutter and Victoria Espinel, it has become clear that the list of potential candidates for the IP Czar position contains several more names and may be growing.

While the IP Czar position may be the most talked about IP position to be filled, it is certainly not the only one.  With Gary Locke now confirmed as the new Secretary of Commerce, the Obama Administration is sure to focus on appointing someone to head the Patent and Trademark Office (PTO).  Apparently, two of the candidates – Q. Todd Dickinson, who is Executive Director of the American Intellectual Property Law Association (AIPLA) and also prior head of the agency toward the end of the Clinton Administration, and James Pooley, a prestigious Silicon Valley patent attorney -- were both recently interviewed by the Obama Administration.  Whoever is chosen by the Obama Administration to head the PTO, it is likely that that person will have to be at least somewhat supportive of efforts in the Senate to reform the patent system since the new PTO Director must be confirmed by the Senate Judiciary Committee – the same committee that is pushing the much-needed patent reform legislation.

In addition to IP-related positions at several of the other agencies, such as USTR, State and Justice, there may also be an IP position for an American at the World Intellectual Property Organization (WIPO).  Now that Francis Gurry has taken over as the Director General of WIPO he may be bringing on board several Deputy Director Generals of his choosing.  One of these deputies will be likely be an American --  possibly the DDG for Patents, as that was the position previously held by Gurry and is often considered to be the most important of the DDG positions.  It’s also possible that whoever does not get offered the PTO Director position may be the nominee for this position.  In any event, it’s likely that this will all shake out by the end of the month.

Check in later in the week and the coming months for more updates on these IP positions.

As reported previously in this blog, late last year President Bush signed into law, S. 3325, “the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008.”  The bill creates an IP Enforcement Coordinator (IPEC) within the Executive Office of the President.  The IPEC – which is often referred to as the “IP Czar” – is to be appointed by the President and confirmed by the Senate. 

Last week, Senate Judiciary Chairman Patrick Leahy, ranking member Arlen Specter, and Senators Evan Bayh, and George Voinovich – all whom were strong advocates for the PRO-IP bill – sent a letter to President Obama urging him to promptly nominate an IP enforcement coordinator.  Earlier this year the U.S. Chamber of Commerce had drafted a similar letter urging that the IP Czar be appointed within the first 100 days of the Obama Administration.

Late last year and early this year, as is typical in DC, there were rumors swirling about several potential candidates for the position. After two months of mostly silence, those winds seemed to have settled on just a few, with the apparent leading candidates being Victoria Espinel, former assistant trade representative for intellectual property at the office of the U.S. Trade Representative and law professor at George Mason School of Law in Virginia, and Shira Perlmutter, formerly head of the office of Policy and International Affairs at the U.S. Copyright Office and law professor at The Catholic University of America in Washington, D.C.

Under the PRO-IP Bill, whomever the new IPEC is will be tasked with drafting a joint strategic plan for combating infringement and counterfeiting, including cooperation with foreign government agencies.  Once the IPEC is confirmed the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) would be abolished and replaced with another interagency advisory committee under the control of the IPEC.

It’s not often that enough exciting things happen in the world of copyright or even the broader category of intellectual property that we can give a week in review. Usually us practitioners are happy with a year in review. Congress, in the week preceding their recess, got busy on voting on copyright and other IP issues.

The Enforcement of Intellectual Property Rights Act of 2008: On September 28^th, the U.S. House of Representatives overwhelmingly passed S. 3325 (the PRO-IP Bill). Earlier in the week the bill had passed the Senate. The President is expected to sign the bill into law.

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