Brian Arthur Pomper is a partner at the law firm of Akin Gump.
Mr. Pomper formerly served as chief international trade counsel to Senate Finance Committee Chairman Max Baucus (D-MT). In that role, he was responsible for advising Chairman Baucus and other members of the Senate Finance Committee on all aspects of the Committee’s international trade and economic agenda.
Pomper is Executive Director of the The Alliance for Fair Trade with India (AFTI), created in June 2013, to lobby for “increased action to address the erosion of intellectual property rights (“IPR”) in India.” According to the group, it is “comprised of organizations representing a range of U.S. industries adversely impacted by India’s troubling and frequently discriminatory policies, including manufacturing, agriculture, telecommunications, pharmaceuticals and beyond.” He will be the first witness as at the United States International Trade Commission (ITC) two-day hearing on “Trade, Investment, and Industrial Policies in India: Effects on the US Economy” which begins today (12 February 2014) at 1 PM EST.
Pomper serves as Executive Director of the Innovation Alliance, whose members (including Dolby Laboratories and Qualcomm) adhere to the following principles:
Changes to our [US] patent laws should be narrowly focused on:
Improving patent quality;
Enhancing certainty; and
Preserving market-based valuations of patents.
Patent reform measures should not disadvantage emerging, pro-innovation, patent-dependent businesses and their surrounding ecosystem.
According to his Akin Gump profile,
Mr. Pomper’s recent representations include:
advising biopharmaceutical companies on the negotiation of the Trans-Pacific Partnership trade agreement and lobbying in support of strong intellectual property protections in that agreement
advising and lobbying for a coalition of companies in support of strong international intellectual property protections
offering strategic advice, intelligence and lobbying for a major U.S. agriculture company on trade, intellectual property and politics
serving as the executive director of a coalition of companies involved in public policy debates concerning the U.S. patent system, including during consideration and passage of the America Invents Act
intelligence gathering and advising a solar energy company on the progress of trade remedy antidumping and countervailing disputes on solar panel imports both in the United States and in Europe.
The following is a compilation of quotes from Pomper, the Innovation Alliance and AFTI.
The America Invents Act was fully implemented less than a year ago, and its effect on our patent system has yet to be fully understood or appreciated. Congress should therefore be cautious before making additional changes to our patent laws. Any changes that are made should not undermine U.S. patents, their robust enforcement, or the existing economic incentives for companies of all sizes to invest in new jobs, research, and development. We encourage you to focus in future hearings on the many different aspects of the legislation and the broad spectrum of stakeholders who would be affected by it.
February 2014, AFTI Statement on Solar WTO Complaint Against India:
AFTI applauds Ambassador Froman and his team for taking India to task for its discriminatory policies disadvantaging U.S. solar products. The U.S. government is doing the right thing by sending a clear signal to all our trading partners that unfair forced localization measures of all stripes will not be tolerated. Such measures depress U.S. exports, hurt U.S. workers and businesses, and cost American jobs. We appreciate the action USTR has taken and hope it will be just the first in a series of measures the U.S. government will undertake to challenge India’s unfair and discriminatory policies.
7 February 2014, Submission of AFTI to the 2014 USTR Special 301 Review:
The Alliance for Fair Trade with India (“AFTI”) was launched in June 2013 in support of increased action to address the erosion of intellectual property rights (“IPR”) in India. AFTI’s diverse membership is comprised of organizations representing a range of U.S. industries adversely impacted by India’s troubling and frequently discriminatory policies, including manufacturing, agriculture, telecommunications, pharmaceuticals and beyond. In light of its mandate, AFTI submits to the Office of the United States Trade Representative (“USTR”) this report which calls on USTR, under Section 182 of the Trade Act of 1974, to designate India a Priority Foreign Country (“PFC”) in its annual Special 301 Report.
The annual Special 301 Report provides USTR with one of its key tools for reviewing intellectual property protection and market access practices worldwide, and for identifying those countries whose practices are damaging to U.S. industry. As we detail below, India’s intellectual property practices are among the most damaging in the world, and clearly rise to the statutory
threshold required for a PFC determination. Moreover, in the last year India has reached an inflection point both in the egregiousness of its domestic policies and in the belligerence of its international statements, in a manner that not only merits, but necessitates a PFC determination. Some of the most egregious policies and practices highlighted in the report include:
India’s compulsory licensing and forced tech transfer policies. In addition to being WTO non-compliant, India’s approaches to compulsory licensing and the forced transfer of technology are clearly intended as tools of industrial policy, to be wielded against foreign companies for the benefit of domestic Indian enterprises. The direct beneficiaries of such policies are companies in industries in which India has become, or aspires to be, a global player, including in pharmaceuticals, green technology, telecommunications, and semiconductors. Since the Indian Controller General’s decision to grant a compulsory license for Nexavar in March 2012, but particularly over the last twelve months, it has become apparent that the Indian government intends to use CL’s as a tool for bolstering domestic innovation. Rampant copyright infringement. Copyright infringement has long been problematic in India, and India’s position as a haven for the illegal downloading and distribution of music, movies, and books has become particularly worrisome for U.S. industry. India’s lengthy history as a bad actor with regard to IPR. Since the inception of the Special 301 process, India has been featured prominently in every one of USTR’s annual reports, either as a Priority Watch List Country or a Priority Foreign Country. Moreover, fourteen years after its first mention in the Special 301 Report, India has still failed to implement WTO-compliant regulations to protect confidential test and other data. Additionally, as an extension of the protection that has been requested for confidential test and other data, AFTI requests that USTR demand the same protections for trade secrets from India that it has requested from China in past years. This request is in-line with the Obama Administration’s recently published Strategy on Mitigating the Theft of U.S. Trade Secrets. As discussed below, the challenges that India presents vis-à-vis trade secrets are sufficiently urgent to be considered a national security concern. Failure to take productive steps to remedy concerns in bilateral and multilateral forums. Despite longstanding concerns expressed by the U.S. and other governments, India has made very little progress within bilateral and multilateral forums in remedying an array of IP-related issues. Equally as troubling, some of these discriminatory IP practices have begun to be emulated by other developing countries, as India has publicly advocated that other countries adopt its discriminatory IP policies. This is a trend which will continue unless the U.S. government takes appropriate action.
24 January 2014, Interview with the Metropolitan Corporate Counsel on The Trans-Pacific Partnership: A Breakthrough In Trade Relationships:
Editor: Describe the consternation in the U.S. Congress that it has not been given access to the documents under negotiation. How does this play into the resistance being expressed in some quarters to “fast track” approval? Is the treaty likely to be approved without a fast track approval?
Pomper: As in the overall negotiations, the argument that the Congress has somehow been shut out of this negotiation is very much overblown. If you speak to USTR officials, they will say that any member of Congress is welcome to look at the negotiating texts. They will also say that they have had far more consultations on the TPP Agreement than on any other trade agreement in history. If you look at the recently introduced Trade Promotion Authority bill (TPA), it contains mechanisms to formalize these consultations and respond to some of the criticisms. Without a doubt, there could be improvements made in how USTR consults with Congress, but I believe the arguments about transparency and lack of consultation are made more for political purposes. The question of whether TPA will get quick approval is unknown since it was recently introduced and the Senate Finance Committee has just held its first hearing. The last time a TPA bill passed, in 2002, it took about a year from its introduction to congressional passage. The administration would like to have TPA in place as soon as possible so that it can close out the TPP negotiation. Because of the change in leadership of the committee, with Chairman Baucus on track to be the next U.S. ambassador to China, along with the political difficulties that remain to be tackled, I suspect the bill will take some time to complete.
Editor: What is required for the TPP Agreement to become law in the U.S.?
Pomper: It is an executive agreement, so the executive branch can sign the agreement without any congressional input whatsoever if it so desires, but it is not self-implementing. What Congress actually considers is domestic legislation implementing the commitments that the President has made in the executive agreement. It is subject to the same consideration by both the House and the Senate – a majority vote. To be accurate, Congress does not vote on trade agreements per se, but on legislation to implement trade agreements.
Editor: The TPP is expected to include an international investment agreement whereby an investor has the right to initiate disputes against a sovereign state. What is the fear that this provision might force countries to lower standards in terms of environmental protection or be open to suits for damages?
Pomper: These investment provisions give companies assurance that they will be accorded fair and equitable treatment in any country, in accordance with the rule of law, when they invest in overseas markets. One argument made by detractors is that by giving comfort to U.S. companies in setting up factories overseas, it accelerates the movement of jobs overseas. I think many would disagree with that argument, but, nevertheless, it is a talking point for those who criticize this provision.
7 November 2013, Innovation Alliance Executive Director Brian Pomper released the following statement regarding today’s Senate Commerce Subcommittee hearing on Demand Letters and Consumer Protection:
The Innovation Alliance abhors abusive, frivolous demand letters, and we are very sympathetic to those who receive them. Where there are abuses, policymakers should adopt targeted measures to address those abuses. While the Innovation Alliance supports efforts to educate consumers and small businesses in responding to abusive demand letters, we believe that expanding the Federal Trade Commission’s regulatory authority under Section 5, potentially giving it unprecedented and unwarranted power to decide the validity of patents and the merits of infringement claims and commercial licensing negotiations, is the wrong approach.
The Innovation Alliance has been actively engaged with policymakers working on balanced legislative proposals to combat frivolous litigation. The White House announcement this morning contains some ideas that in principle may discourage frivolous litigation and, if drafted and implemented properly, could gain wide stakeholder support. Other aspects are quite troubling, in particular applying eBay to the ITC, a change that is unnecessary, unwise, and unsupported by any data. The Innovation Alliance also has concerns about expanding and extending the USPTO’s transitional program for covered business method patents. Senator Schumer also has a proposal on this issue. We appreciate Senator Schumer’s openness in hearing our concerns on his proposal and look forward to continuing to work with him to improve it.
14 March 2013, Innovation Alliance on the SHIELD Act:
The Innovation Alliance is willing to explore ways to reduce frivolous patent litigation, but the SHIELD Act (H.R. 845) does not target frivolous litigation. The SHIELD Act is fundamentally flawed because it takes the same, discredited approach of focusing on certain types of litigants rather than on certain types of litigant behavior. It also punishes only frivolous claims and not frivolous defenses, adopts a grossly oversimplified view of innovation in the United States that treats only a few narrow categories of patent-holders as legitimate, and would empower deep-pocketed infringers to game the system to the disadvantage of small innovative companies trying to enforce their patents. The SHIELD Act would hurt innovation and stifle job creation, and it should not pass into law.
Brian Pomper, Executive Director of the Innovation Alliance, issued the following statement in response to the introduction on Friday of H.R. 6621, a bill that makes technical corrections to the America Invents Act (“AIA”):
“The Innovation Alliance is pleased to support H.R. 6621. We call on the Congress to pass this legislation quickly without amendment and send it to the President’s desk for his signature.
“The AIA was the culmination of years of hard work spanning four Congresses. On a bipartisan basis, the House and Senate Judiciary Committees worked hard to achieve a balanced approach that made the most sweeping changes to U.S. patent law in over 50 years. H.R. 6621 makes important technical fixes that streamline the law without making substantive or policy changes to the Act. The Innovation Alliance supports it fully and urges its quick passage.”