Carlos Gutiérrez

How A Wall Street Journal Reporter Influenced the Development of US IPR Diplomacy

This is the second in a series of articles on the evolution of the IP Attaché program in China.  My purpose is to recount the challenges in establishing the position, many of which may have been forgotten.  In addition, I thought it would be useful to describe the impact of IP-related collaboration between the USPTO and its Chinese counterparts.  My previous article was on the creation of the IP-5 organization and the invitation that the USPTO extended to China.

Can a reporter make a difference in the life of an IP diplomat?  From my experience, the answer is yes.  Indeed, he can make a difference in an entire IP institution.

In June of 2005, Neil King Jr. of the Wall Street Journal published his interview with me,  “Sisyphus in China: US Lawyer’s Antipiracy Task in China is Endless.” The article, which has recently appeared beyond the WSJ paywall,  provides a snapshot of  China’s protection of IP after WTO accession when counterfeit goods were everywhere, and Chinese officials excused this weak enforcement as a “Chinese characteristic” (中国特色). 

Although I hadn’t asked to be interviewed, Mr. King arrived after a spate of skeptical “what is this guy doing”  reporting about me.  He was interested in a different view of my work and the IP issues in China.  The earlier articles also suggested that my posting to China might not be durable, as they could be read to imply that the  USPTO shouldn’t have bothered sending someone to such a lawless place as China. For example, one article from the Webzine Red Herring called me “Hollywood’s Babysitter,” as if my work solely involved helping out the Motion Pictures Association to market its films.  Professor Dennis Crouch’s influential Patently-O blog assumed that I was sent to Beijing to “fight IP crime,” based on the mounting pressure then being placed on China to improve its criminal IP enforcement by USTR.  The Chinese press was generally more serious, perhaps even suspicious of my intentions.  After interviewing Chinese officials and US businesses, Neil King began to change the narrative by describing me as “a legend around China” and writing that I appeared to be “everywhere,” trying to advance the IP interests of the United States.

I arrived in China in September 2004.  I committed to a multi-year assignment for which I had been “detailed” from the USPTO.  The Chinese expression “jiediao” (borrowed)(借调),  which refers to borrowing employees from work units, seemed to fit this bureaucratic situation well:  I was jiediao’ed from the USPTO to the Economic Section of the US Embassy.

My getting to Beijing was beset by bureaucratic opposition. To help overcome that opposition, an invitation came at the personal request of then Amb. Clark T. ‘Sandy’ Randt.  Sandy had been a partner at Shearman & Sterling, and in many respects, my relocating seemed more like a law firm hire to build out a new business unit in the Embassy. I also had the active support of the Secretary of Commerce, Carlos Gutierrez, and the support of officials at other agencies, such as USTR and the International Trade Administration.  Surprisingly, a principal source of opposition was within USPTO. PTO is a user-fee funded agency. Many people did not understand why USPTO should bear the considerable expense of locating staff and family overseas to perform tasks that were already handled using taxpayer revenues by the State Department or Commerce Department. They also thought that other agencies had no business telling PTO how to spend its money.

In the struggle to relocate me and my family,  I had also thought little about the range of logistical issues that a new position involves, such as what kind of support I would need at the Embassy, whether the State Department / Economic Section was indeed the optimal home for my position, what my diplomatic rank would be in the Embassy, or whether there were possibilities for promotion or bonuses.

The WSJ article, however, triggered a series of positive developments.  The month after its publication, the Chinese government agreed to post a counterpart IP expert, to their embassy in Washington, DC.  Dr. Yang Guohua, who is currently a professor at Tsinghua Law School, served in that pioneering position. Shortly after the article was published, the Inspector General of the Commerce Department also recommended that I be relocated to the Commercial Section of the Embassy and that I receive additional support.

Another development that was affected by the article involved the USPTO’s broader role in international IP diplomacy.  This issue required a longer timeframe to develop.  After the article was printed,  I met with Secretary Gutierrez in Washington, DC to talk about my experiences in Beijing.  The Secretary mentioned to me that he had seen there was an interview with me in the Wall Street Journal.  I asked him if he had gotten to read the article.  He said “no,” and that “the newspaper is at my house and I will read it soon.”

The next time I saw the Secretary was on March 29, 2006.  At my urging, he met with SIPO Commissioner Tian Lipu and spoke about IP and innovation before the newly constituted National IP Strategy Office at SIPO.  The Secretary volunteered that he had read the article and that it “was a good article.”  I was, frankly, shocked that he had remembered our brief discussion nearly nine months earlier.  He announced days later that the US government was going to expand the successful experiment in Beijing of posting IP experts from the USPTO to other countries. The global Attaché Program, as USPTO recently noted in the Journal of the Patent and Trademark Office Society, was thereby “formally launched” in 2006. Within five months, four additional IP Attachés were sworn into the Foreign Commercial Service.  Today there are eleven IP Attaché positions involved in different countries and regions,  in addition, there are attachés based in Geneva, who support US engagement with international organizations, such as the WTO and WIPO.  These expert offices are also supported by expert support staff in USPTO offices overseas. 

It was Neil King’s article that focused the Secretary’s attention on the possibility of making the IP Attaché program a global program and also reducing resistance to placing individuals overseas.  In retrospect, a decision to dispatch PTO officials overseas may seem obvious.  Implementing that commitment however required an additional political push by the Secretary.

Over the intervening years, the attaché position has changed from its original focus.  In USPTO’s own words, it now emphasizes  “provid[ing] a variety of services to a broad base of U.S. stakeholders” which includes supporting “broad policy issues to specific legal problems”.  The program has also become a “valuable resource to U.S. rights holders.”  While I was actively involved with the business community, I believed my optimal role was to enable others to better perform their jobs.  I made myself a resource to the whole US embassy, supporting the Ambassador, the State Department, Commerce Department, Foreign Agricultural Service, Public Affairs Office, and others in the IP-related aspects of their mission. I conducted numerous training programs for and with them.  I tried to build upon the goodwill of officers whose mandate was “a mile wide” and who were necessarily limited in how deeply they could engage on any one issue. I also supported the efforts of other embassies to post IP officials to China, including the European Union and the United Kingdom, and worked with IP office colleagues from Japan, Korea, and France who were already resident in China. I realized my greatest value would be in engaging multipliers for my goals.

I  also recognized that I lacked the time and support to engage deeply in time-consuming individual business complaints. Neil King fairly described my task as  “prod[ding] China to crack down on its rampant counterfeit and piracy problem.”   I addressed business concerns by working extensively with the Commerce Department on improving methods for handling business complaints and selectively being engaged in important cases. For example, I helped a small company, ABRO of Indiana, deal with counterfeiters at trade shows.  I supported ABRO because trade show infringement had become a widespread problem for US companies.  I also worked with ABRO to defuse bilateral tensions that arose over their effort to extradite the counterfeiting company to the United States.  My work on that dramatic project was aired on US public radio a few years ago.

Looking back on the Neil King interview, I see that many of my projects took years to come to fruition.  One of my “crusades” was “the creation of a Chinese national IP court of appeals.” That task was also finally accomplished in 2018 with the creation of the IP Court of the Supreme People’s Court.   Neil King noted that I had “things to show” on criminal IP matters in China.  Through my advocacy and the work of others, China took further steps to increase its criminal IP cases by 16 times between 2007 and 2012.  Another effort involved obtaining some bonus or recognition from Washington, DC for my hard work in establishing the office as a “jiediao’ed” employee.  In 2018, President Trump gave me the Meritorious Honor Award, the highest honor in the Civil Service. Yet another issue, involving diplomatic rank, was also later resolved in 2020,  when Congress, after considerable lobbying by USPTO and industry, approved a higher rank for many attachés overseas. That promotion, however, came too late for me as I had long left diplomatic service. 

Neil King’s article made the point to an important readership that I was not just a babysitter to protect Hollywood’s treasures, but rather an expert who was, in his words, “hard to clone.”  The article recognized the complexity and scope of the challenges to US IP protection in China that I had taken on. The Secretary also realized the potential for similar experts to assist US companies elsewhere in the world. The development of the attaché program became a signature accomplishment in IP of Sec. Gutierrez. With home office support, other attachés after me have also since proved their worth at numerous US embassies and consulates overseas in a much expanded and better-resourced global program. 

Years after its publication, I called up Neil King to tell him of the article’s impact and to thank him.  The article remains a milestone in the decades-long effort to create, support, and institutionalize the attaché program as well as expand it to other destinations.

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