The publication of the US Joint Strategic Plan on IP Enforcement is a welcome sign of the recognition accorded to the need to protect intellectual property by the country with the world’s biggest economy. In particular, and as the Plan recognises, the US economy is highly dependent on creativity, imagination and invention. So this commitment to protect the intellectual property that flows from that creativity is to be welcomed by everyone involved in developing and supplying the means to do so.

But it is a disappointment to see no reference in the Plan to those means, apart from those related to law enforcement and data gathering. Of course, in its 50-some pages of substantive content (the other pages being introduction and appendices) there is more, but the main thrust of this Plan is towards Federal Government coordination and collaboration and encouragement to overseas trading partners.

A Missed Opportunity?

So is this a missed opportunity, or even worse, a misguided opportunity? And does it deliver on its statement that the US ‘should draw attention to progress made by other countries, including their most effective policies and successful law enforcement programs’?

We ask whether it is a missed opportunity or a misguided opportunity because the only reference to authentication tools, solutions, systems, marks or devices, is the proposal to establish a mandatory requirement for a track and trace system for pharmaceuticals and medical products ‘which allows for authentication of the product’.

We have argued consistently in these pages that the most effective strategy to combat product counterfeiting is to use both tracking and authentication methods. Track and trace is a way of knowing where a product has been and where it should be at any given time; authentication is the method to demonstrate that the product is what it claims to be - ie. that it’s genuine.

Track and trace helps to secure the supply chain to prevent the infiltration of fakes, but it does not in itself identify those fakes, and nor does it help to identify whether products distributed outside the legitimate supply chain are genuine or not.

This position is not ours alone. Representatives of the International Authentication Association have given conference papers explaining how track and trace and authentication complement each other and why the former does not provide authentication. The IAA will shortly publish its Authentication Framework which will further elaborate on this point.

Similarly, the draft standard on the Performance Requirements of Authentication Solutions recently circulated to ISO members by Project Committee 246 states unequivocally that ‘Track and Trace technology when used alone is not considered to be an authentication solution’.

The role of the new IP Enforcement Coordinator in the US Government, as stated by Victoria Espinel in her introduction to the Plan, is ‘to coordinate the development of a joint strategic plan against counterfeiting and infringement.’ She has delivered this plan in a relatively short time and is to be congratulated on that. But surely a national plan to fight counterfeiting must - must! - include references and guidance on the means of authentication, because detecting fakes is a key part of any anti-counterfeiting strategy. So this is a missed opportunity?

Sadly, though, it is not just a missed opportunity but, according to the view of the IAA and ISO’s PC 246 (as well as Authentication News), it is misguided in its statement that track and trace allows for authentication.

The Missing International Perspective

It is understandable that, in this first Strategic Plan from the US’s new Intellectual Property Enforcement Coordinator, it results from a primarily domestic data gathering exercise. But this represents another missed opportunity, that of referring to successes in other countries. This in itself would have demonstrated the value of ‘draw(ing) attention to progress made by other countries’.

There have been numerous examples quoted in Authentication News of successful national policies and anti-counterfeiting projects from countries other than the US. Perhaps in the time available for the preparation of this Plan it wasn’t possible to review, for example, the long and successful experience of France in combating counterfeit goods; or the contribution of development of standards for authentication tools in China; or the UK’s success with Trading Standards Officers, focused on consumer protection - including protection from fakes.

The Plan stakes a claim for the US to be a world leader in protecting IP, but the country does not have a monopoly on good practice or experience, so it is a laudable aim to encourage good practice from other countries. It is a shame the Plan doesn’t practice what it preaches.

Overall, though, we welcome this Plan and the commitment it represents for the US to enforce IP rights and combat counterfeits. We view it, however, as a flawed Plan and would encourage the US IPEC to cast her net much more widely for the next Strategic Plan. And therefore we also encourage our readers to provide information to the IPEC to demonstrate the role and value of authentication and of experience in other countries.