By Ron Alvarez
Knowing what U.S. government resources are dedicated to the investigation and prosecution of IP crime is essential for brand owners and IP protection specialists to have. That knowledge and understanding aids in the development and implementation of a more effective overall IP protection strategy.
The following excerpts were pulled from the January 2016, The United States Attorneys’ Bulletin; and the June 2016, U.S. Department of Justice, Criminal Division, Reporting Intellectual Property Crime, A Guide for Victims of Copyright Infringement, Trademark Counterfeiting, and Trade Secret Theft (Second Edition)
I. PROSECUTORIAL RESOURCES
A. U.S. Justice Department/Criminal Division
Primary investigative and prosecutorial responsibility within the Department rests with the FBI, the United States Attorneys’ offices, the Criminal Division’s Computer Crime and Intellectual Property Section (CCIPS), the National Security Division (NSD), and, with regard to offenses arising under the Food, Drug, and Cosmetic Act, the Consumer Protection Branch of the Civil Division.
The Criminal Division’s Computer Crime and Intellectual Property Section (CCIPS) pursues three overarching goals: to deter and disrupt computer and IP crime, to guide the proper collection of electronic evidence by investigators and prosecutors, and to provide technical and legal advice and assistance on these issues to agents and prosecutors in the United States and around the world.
Each United States Attorney’s office has one or more prosecutors specially trained in the enforcement of the IP laws through the Computer Hacking and Intellectual Property (CHIP) program.
The Department has more than 260 Computer Hacking and Intellectual Property (CHIP) attorneys across the country who receive special training to address both IP and cyber-crimes and 16 attorneys in the Criminal Division’s Computer Crime and Intellectual Property Section specializing entirely on IP crime.
B. U.S. Department of Justice Task Force on Intellectual Property
Specifically, the IP Task Force supports the Department’s efforts to aggressively investigate and prosecute a wide range of IP crimes, with a particular focus on (1) public health and safety, (2) theft of trade secrets and economic espionage, and (3) large-scale commercial counterfeiting and piracy.
The IP Task Force includes various other Justice Department divisions and offices, as well as the FBI, and the ICE/HSI.
II. THE FEDERAL INTEREST IN PROSECUTION OF IP CRIMES
A. In determining the scope of the federal interest that would be served by a prosecution of a particular IP case, the attorney for the government needs to weigh several relevant considerations, including:
(1) [current] Federal law enforcement priorities;
(2) The nature and seriousness of the offense;
(3) The deterrent effect of prosecution;
(4) The person’s culpability in connection with the offense;
(5) The person’s history with respect to criminal activity;
(6) The person’s willingness to cooperate in the investigation or prosecution of others; and
(7) The probable sentence or other consequences if the person is convicted.
…the particular focus on the identified prosecution priorities: (1) Health and Safety of the American Public, (2) Theft of Trade Secrets and Economic Espionage, and (3) Large-Scale Commercial Counterfeiting and Piracy Operations.
B. Prosecutors may consider any number of factors to determine the seriousness of an IP crime, including:
(1) Whether the counterfeit goods or services endanger the public’s health or safety (e.g., counterfeit drugs or automotive parts)
(2) The nature of the trade secret information (e.g. critical technologies with military or other sensitive applications)
(3) The scope of the infringing or counterfeiting activities (e.g., whether the subject infringes or traffics in multiple items or infringes upon multiple industries or victims), as well as the volume of infringing items manufactured or distributed
(4) The scale of the infringing or counterfeiting activities (e.g., the amount of illegitimate revenue and any identifiable illegitimate profit arising from the infringing or counterfeiting activities)
(5) The number of participants and the involvement of an organized criminal group
(6) The scale of the victim’s loss or potential loss, including the value of the infringed item or trade secret information, the impact of the infringement or trade secret theft on the market for the infringed item, and the damage to the rights holder’s or trade secret owner’s business
(7) Whether the victim or victims took reasonable measures (if any) to protect against the crime
(8) Whether the purchasers of the infringing items were victims of a fraudulent scheme, or whether there is a reasonable likelihood of consumer mistake as a result of the subject’s actions
III. INVESTIGATIVE RESOURCES
Both the FBI and ICE/HSI have agents specifically assigned to handle IP cases, and a total of 23 domestic and international law enforcement agencies coordinate on IP cases through the National Intellectual Property Rights Coordination Center, while the Department’s Bureau of Justice Assistance provides grants and training to support IP investigations and prosecutions by state and local authorities.
A. Federal Bureau of Investigation
The FBI’s Criminal Investigative Division includes an Intellectual Property and Cyber‐Enabled Crimes Unit (“IPR Unit”) that oversees its national intellectual property program, which includes dedicated FBI Special Agents who are responsible for the investigation and prosecution of intellectual property crime. The FBI’s IPR Unit is headquartered at the IPR Center and the FBI Special Agents dedicated to investigating IP crime are located in field offices throughout the country. The IPR Unit and agents work closely with all FBI field offices to combat IP crime. The FBI’s IPR Unit encourages victims to report intellectual property crimes through the IPR Center or to any of the FBI’s 56 field offices. Rights holders are also encouraged to develop a relationship with an FBI agent in a local field office before an incident occurs. A list of the FBI field offices is available online at www.fbi.gov/contact‐us/field/field‐offices.
…the FBI has recently announced a new collaborative strategy. This new strategy builds upon the work previously done by the Department, while also working with industry partners to make enforcement efforts more effective. As part of this strategy, the FBI will partner with third-party marketplaces to ensure they have the right analytical tools and techniques to combat intellectual property concerns on their Web sites. The FBI also will serve as a bridge between brand owners and third-party marketplaces in an effort to mitigate instances of the manufacture, distribution, advertising, and sale of counterfeit products. This new strategy will help law enforcement and companies better identify, prioritize, and disrupt the manufacturing, distribution, advertising, and sale of counterfeit products. High level, more complex crimes can then be investigated by the FBI and other partner law enforcement agencies of the National Intellectual Property Rights Coordination Center.
B. National Intellectual Property Rights Coordination Center (IPR Center)
The IPR Center is an interagency task force led by U.S. Immigration and Customs Enforcement, Homeland Security Investigations (“ICE‐HSI”). The IPR Center is a collaborative effort by over 19 U.S. government investigative and regulatory agency partners, including the Federal Bureau of Investigation (“FBI”), as well as representatives from Interpol, Europol, Canada, and Mexico, that work together to combat intellectual property crime. IPR Center partners work together to investigate and deconflict case leads, interdict counterfeit, and pirated goods at the borders, and provide extensive training and outreach. The IPR Center also works closely with the Department of Justice through the Criminal Division’s Computer Crime and Intellectual Property Section.
The IPR Center encourages victims to visit its website at www.IPRCenter.gov to obtain more information about the IPR Center and to report violations of intellectual property rights online or by emailing IPRCenter@dhs.gov.
C. Internet Crime Complaint Center (“IC3”).
IC3 is a partnership between the FBI, the National White Collar Crime Center, and the Department of Justice’s Bureau of Justice Assistance. IC3 receives, develops, and refers criminal complaints involving a range of cybercrimes including intellectual property crime occurring online. IC3 encourages victims to report complaints involving cybercrime through its website at www.ic3.gov.
D. U.S. Food and Drug Administration—Office of Criminal Investigations (OCI)
OCI protects the public health and furthers the FDA mission by investigating suspected criminal violations of the Federal Food, Drug, and Cosmetic Act (“FDCA”) and other related laws. Among other things, OCI investigates breaches in the legitimate medical supply chain by individuals and organizations dealing in unapproved, counterfeit, and substandard medical products.
Those who work in the pharmaceutical industry should be aware that, beginning January 1, 2015, the Drug Supply Chain Security Act (“DSCSA”) requires certain trading partners (manufacturers, repackagers, wholesale distributors, and dispensers), to notify FDA and all appropriate immediate trading partners not later than 24 hours after making the determination that a product is illegitimate.
Manufacturers are additionally required to notify FDA and appropriate immediate trading partners not later than 24 hours after the manufacturer determines or is notified by FDA or a trading partner that there is a high risk that a product is illegitimate. The DSCSA also requires that manufacturers, repackagers, wholesale distributors, and dispensers consult with FDA before terminating the notification about an illegitimate product.
U.S. Department of Justice, Criminal Division, Reporting Intellectual Property Crime, A Guide for Victims of Copyright Infringement, Trademark Counterfeiting, and Trade Secret Theft (Second Edition) June 2016
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