US Patent and Trademark Office (USPTO) FOIA requests

  • On September 2009, KEI made a first attempt to FOIA documents related to WIPO negotiations on copyright exceptions for person who are blind or have other disabilities.

    September 30, 2009.

    USPTO FOIA Officer
    United States Patent and Trademark Office
    PO Box 1450
    Alexandria, VA 22313-1450
    efoia@uspto.gov

    Dear FOIA Officer:

    Knowledge Ecology International is a non-profit organization that follows global negotiations on intellectual property rights. We are very much involved in research and advocacy in the rights to persons with reading disabilities, a topic that we have written about on several occasions, and for which we have prepared comments to the USPTO and the Copyright Office in public consultations.

    KEI requests all documents that have been prepared or received by the USPTO on the topic of a proposal for a WIPO treaty dealing with reading disabilities. This would include but not be limited to position papers, analysis, and communications with members of congress, private sector publishers or their representatives, delegates and staff of WIPO, and communications with other federal agencies.

    KEI also requests that same documents that relate to the so called WIPO "Stakeholders Platform," which was organized in 2008.

    Among the communications likely to be of interest are those involving:

    • Tarja Koskinen-Olsson or anyone from the International Federation of Reproduction Rights Organisations' (IFRRO),
    • Jens Bammel of the International Publishers Association
    • Ted Shapiro
    • Bradley Silver, of Time Warner

    Any instructions given to geneva representatives to brief WIPO delegates

    KEI requests a waiver for fees for this FOIA request.

    Sincerely,

    James Love

    On October 15, 2009, USPTO rejected our request for a few waiver.

  • On October 2009, KEI requested USPTO more information in relation to a meeting entitled “Intellectual Property and Innovation in the Pharmaceutical Industry” that the USPTO, in collaboration with Pfizer Limited, conducted in Mumbai, India on September 9, 2009. This FOIA request to the USPTO about a project in India with Pfizer is still being processed. But four pages of documents have already resulted in the USPTO issuing a statement of regret about the practice that was the subject of the FOIA. More information here The USPTO-Pfizer collaboration to change India's laws on patents and test data.

    USPTO FOIA Officer
    United States Patent and Trademark Office
    PO Box 1450
    Alexandria, VA 22313-1450
    Via e-mail: efoia@uspto.gov

    October 2, 2009

    Dear FOIA Officer:

    Under the Freedom of Information Act, KEI requests for the following information:

    1. In relation to a meeting entitled “Intellectual Property and Innovation in the Pharmaceutical
    Industry” that the USPTO, in collaboration with Pfizer Limited, conducted in Mumbai, India on
    September 9, 2009:

    (a) The agenda and list of participants.
    (b) Any reports or minutes of the meeting.
    (c) All communications related to the meeting; and documents prepared or received by the
    USPTO related to the meeting, including but not limited to communications with other
    federal agencies including the White House, foreign governments, members of Congress or
    their staff, Pfizer or its representatives, trade associations, academic experts, law firms,
    members of the press or anyone else who was involved in any way with the decision to hold
    the meeting, or participated in any way with the planning, execution or follow-up of the
    meeting.
    (d) The budget for the event, and information about who paid for the event.
    (e) Contracts with any third parties who provided any support, services or goods for the
    meeting, which the exception of contracts for food, lodging or meeting facilitates.

    2. A list of any past of future events that the USPTO has or expects to organize with Pfizer.
    You may contact me directly at (202) 332 2670 or by electronic mail at malini.aisola@keionline.org to
    discuss this further.

    KEI is a 501(c)(3) tax exempt, nonprofit organization non governmental organization that searches
    for better outcomes, including new solutions, to the management of knowledge resources, as is
    described at http://www.keionline.org. KEI has no commercial interest in the records being sought, but
    seeks access to them only to educate the public on critical issues relating to the activities of the federal
    government.

    KEI requests a waiver of search and duplication fees.

    I look forward to receiving your response

    Yours sincerely,
    Malini Aisola

  • On February 25, 2010, KEI filed a second FOIA concerning the WIPO negotiations on copyright exceptions for persons who are blind or have other disabilities.

    USPTO FOIA Officer
    United States Patent and Trademark Office
    P.O. Box 1450
    Alexandria, VA 22313-1450
    Phone: (571) 272-3000
    Fax: (571) 273-0099
    email: efoia@uspto.gov
    February 25, 2010
    Dear FOIA Officer:

    This is a request under the Freedom of Information Act, 5 U.S.C. § 552, on behalf of Knowledge Ecology International (KEI), for documents and communications prepared or received by the USPTO on the topic of the work of the World Intellectual Property Organization (WIPO) concerning access to copyrighted works for persons who are blind or have other disabilities.

    INTRODUCTION

    KEI is a 501(c)(3) tax exempt, nonprofit nongovernmental organization with offices in Washington, DC and Geneva that researches, advocates and influences global negotiations on intellectual property and knowledge goods related matters. We are very involved in research and advocacy on behalf of persons with disabilities, a topic that we have written about on several occasions, and for which we have prepared comments to the USPTO and the Copyright Office in two 2009 public consultations.
    In submitting this FOIA request, KEI is encouraged by the Transparency Memorandum issued by President Obama in January 2009 which declared that “My Administration is committed to creating an unprecedented level of openness in Government” and that “Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

    This FOIA request is similar to the FOIA request that KEI submitted to the USPTO on September 30, 2009. That FOIA request concerned documents about the WIPO Stakeholders Platform and a proposed treaty for persons who are blind or have other disabilities. USPTO rejected KEI's request for a fee waiver in the September 30, 2009 submission. This request modifies somewhat the earlier FOIA, and includes more extensive justification for the fee waiver request.

    FOIA REQUEST

    In order to conduct our investigation and with a view to serving the public interest, KEI requests all documents, including email, letters, faxes and other communications, memorandums, power point presentations, and any other information which address:

    • The so called “WIPO Stakeholder Platform,” for persons who are visually impaired;
    • Norm setting work at WIPO for persons who are blind, visually impaired or have other disabilities;
    • A possible WIPO treaty dealing with copyright exceptions and limitations for people who are blind or have other reading disabilities, or;
    • Other initiatives, mechanisms, instruments or proposals to deal with the same issue, such as, for example, proposals for declarations at the WIPO 2010 General Assembly.

    This request would include, but should not be limited to, position papers, analysis, and communications with Members of the United States Congress, foreign governments, the staff or consultants working for WIPO, delegates to the WIPO Standing Committee on Copyright and Related Rights (SCCR) or General Assembly (GA), communications with other US federal agencies, private sector publishers or their representatives, other persons working for non-government or private sector organizations, or other members of the public.

    The responsive records are likely to include communications involving:

    • Tarja Koskinen-Olsson or anyone from the International Federation of Reproduction Rights Organization (IFRRO)
    • Jens Bammel of the International Publishers Association
    • Ted Shapiro
    • Bradley Silver of Time Warner
    • Instructions given to the United States Mission in Geneva to prepare for the WIPO negotiations and to brief WIPO delegates
    • Representatives of the Motion Picture Organization of America (MPAA), such as Fritz Attaway
    • Representatives of the Recording Industry Association of America (RIIA), such as Neil Turkewitz
    • Representatives of the Association of American Publishers (AAP)
    • Representatives of Pearson Publishers
    • Representatives of any corporate body associated with Bertelsmann or Random House
    • Representatives of the International Intellectual Property Alliance (IIPA), including but not limited to Steve Metalitz
    • Representatives of the U.S. Chamber of Commerce, such as Mark Esper or Brad Huther.

    Documents that are excluded from this request are documents that were submitted to the Copyright Office, Library of Congress, and the USPTO consultations in 2009 on persons with disabilities that are published on the Copyright Office web page http://www.copyright.gov/docs/sccr, or any documents that are published on the WIPO web page for the SCCR. KEI already has access to these documents.

    The time period of our request is from 2007 to the present.

    When possible, we prefer that the documents be released in electronic form in order to avoid the cost of duplication of documents and to assist in the dissemination of the documents.

    REQUEST FOR WAIVER OF SEARCH AND DUPLICATION FEES

    KEI requests a waiver of all fees associated with this request under 5 U.S.C. § 552(a)(4)(iii) because this request is not for any commercial purpose, and the information sought will be widely circulated and will be used in a way that meaningfully contributes to the public understanding of government practices and policies, and in advancing the public interest.
    KEI is able to significantly contribute to the understanding of a diverse audience of persons following negotiations and discussions involving intellectual property rights, including the policies and practices of the US Patent and Trademark Office (USPTO) and other federal agencies. KEI is making this FOIA request for a scholarly or scientific purpose and has no commercial interest in the requested information. KEI seeks to disseminate the information, analyze it and to educate the public on critical issues relating to the activities of the United States government.

    KEI is actively engaged in public policy research and advocacy, and searches for better outcomes, including new solutions, to the management of knowledge resources. KEI is focused on social justice, particularly for the most vulnerable populations, including low-income persons and marginalized groups, and policies to manage knowledge resources in ways that are more efficient, more fair, and responsive to human needs. KEI is particularly drawn to areas where current business models and practices by businesses, governments or other actors fail to address social needs, and where there are opportunities for sustainable improvements.

    KEI advocates on behalf of consumer interests, provides salient research and analysis in relation to initiatives aimed at overcoming the access barriers to copyrighted works for persons who are blind or have other disabilities being discussed at WIPO. The requested information will help KEI and the public to better understand the positions of the USPTO, other federal agencies and non-federal actors, in the consideration of the proposal for a WIPO treaty or other norm setting activities, and the relation between the US government and the different stakeholders in these discussions. KEI will serve the public interest by presenting the requested information within the relevant historic and political context so it is accessible to a large audience and allows for more transparent and democratic policy making. The information that KEI expects to receive through this FOIA request is not already in the public domain.

    KEI will disseminate the information received through this request to the public and to policy makers in several ways. KEI publishes research in scholarly journals, general interest and specialty newspapers and periodicals, in-house and third party blogs and web pages, and provides technical advice to governments, NGOs and firms. KEI provides a variety of forums for interested persons to discuss and debate Knowledge Ecology topics, including the organization of seminars and meetings, through the management of several discussions mailing lists, and through the interactive use of social information media such as Twitter and Facebook. The articles written by KEI are often based upon or informed by information obtained from federal agencies, including information obtained under FOIA requests. KEI anticipates using information received in this FOIA request in future publications. The KEI webpage provides links to the many publications of the KEI staff: http://www.keionline.org. KEI work, including the information obtained with FOIA requests, is often used by journalists, who have an interest and expertise in the topics/1/.

    KEI is well known for its ability to monitor government operations, process information about complex public policies, and explain issues and policy options to a broad audience. KEI and its predecessor organization, the Consumer Project on Technology (CPTech) have been credited with playing an important role in stimulating public debate and civil society engagement in a variety of policy areas that have led to changes in U.S. Trade policy as relates to intellectual property policy/2/. In 2006, KEI was awarded the MacArthur Award for Creative and Effective Institutions for “advancing the public interest in intellectual property policy”. KEI's work program includes but is not limited to influencing the outcome of global norm setting at the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), the World Health Organization (WHO), the Hague Conference on Private International Law, in a plethora of plurilateral, bilateral and unilateral trade disputes, and in national legislative debates and actions by executive branch agencies.

    Upon request, KEI will provide your office with additional details of the extent to which KEI has demonstrated its ability to disseminate information to the public, and to contribute significantly to public policy debates, including through deepening public understanding of complex issues involving federal government policies and practices regarding intellectual property rights and the management of knowledge resources.

    For any document(s) or portion of document(s) to which you deny KEI access, please provide an index itemizing and describing justification of your grounds for claiming each exemption, explaining why each exemption is relevant to the document or portion of the document withheld. KEI looks forward to receiving your written response within twenty working days as required by law.

    Thank you for your consideration of our request. You may contact KEI directly by phone or by electronic mail to discuss this request further.

    Sincerely,

    Judit Rius Sanjuan
    Knowledge Ecology International

    /1/Examples of publications, news services and blogs that quote KEI Staff: New York Times, Wall Street Journal, Washington Post, LA Times, CNN, Financial Times, the Associated Press, Reuters, Bloomberg New Service, Inside US Trade, Wired Magazine, IP-Watch, CNET News, Tech Dirt, ZDNet, Ars Technica, The Standard, Bridges Weekly Trade News, Boletin Farmacos, Slashdot, BoingBoing, Pharmalot, Spicy IP, Micheal Geist Blog, the Huffington Post. See also the Addendum concerning KEI activities to disseminate information.

    /2/Examples of sources recognizing KEI/CPTech ability to monitor government operations, process information about complex public policies, and explain issues and policy options to a broad audience: Doha Hurrah, Wall Street Journal, November 2001; Peter Drahos & John Braithwaite, Information feudalism: who owns the knowledge economy?, Earth Scan, 2002; Susan K. Sell, Private power, public law: the globalization of intellectual property rights, Cambridge University Press, 2003; Greg Behrman, The Invisible People: How the US Has Slept Through the Global AIDS Pandemic, the Greatest Humanitarian Catastrophe of Our Time, Simon & Schuster, 2004; “Unitaid Executive Board Approves Breakthrough Plan To Make Aids Treatment More Widely Available At Lower Cost, Patent Pool Could Save Over One Billion Dollars A Year,” UNITAID Website, 2009, or the discussion about the proposed WIPO Treaty for persons who are blind or have other disabilities at the recent Access to Knowledge conference at Yale Law School: http://yaleisp.org/2010/02/a2k4strategies/. See also the Addendum concerning KEI activities to disseminate information.

    On March 9, 2010, USPTO wrote this letter requesting a clarification of our request for a fee waiver. We responded clarifying our request. On March 29, 2010 our request for a public interest fee waiver was granted.

    On April 14, 2010, USPTO notified that our FOIA request was partially denied. We appealed. In response, USPTO sent us hundreds of pages of documentation that we are currently analyzing.

  • On January 11, 2011, KEI requested the PTO for all documents prepared or received on the topic of the use of compulsory licenses on medical patents by the Government of Thailand for the time period of January 20th, 2009 until the present, specifically:

    1. Copies of documents relating to any review and evaluation of intellectual property policies in Thailand, that relate to medical technologies.

    2. Copies of documents relating to communication regarding policies and practices of compulsory licensing of medical patents in Thailand, including but not limited to any notes, memorandums, reports, cables, electronic mail, fax, letter or other communication between your department and the pharmaceutical industry, or law firms, consultants, public relations firms, lobbyists or others working their behalf, as well as communications with any member of congress or their staff, communications with foreign governments or with other agencies within the U.S. federal government, or involving any other person.

    3. Copies of documents relating to any conclusions reached or position papers prepared on compulsory licensing practices in Thailand,

    4. Any other documents relevant to or regarding the use of the compulsory licensing of medical patents by Thailand.

On September 11, 2013, KEI submitted a FOIA request to the USPTO concerning all correspondence between General Electric and the USPTO regarding the WIPO Treaty for the Blind. The text of the FOIA request is as follows:

From: Claire Cassedy
To: USPTO FOIA Officer efoia@uspto.gov
Subject: FOIA Request regarding General Electric and USPTO
Date: 11 Sept 2013 14:57:11 -0400

Dear USPTO FOIA officer,

Under the Freedom of Information Act, Knowledge Ecology International (KEI) requests all correspondence sent to the U.S. Patent and Trade Office from General Electric including persons who represent and advise General Electric in the negotiations on the World Intellectual Property Organization (WIPO) treaty for the blind, some of whom are lawyers or consultants.

The period of the request is from January 1, 2013 to the present. We are happy to narrow the scope of this request if it would expedite the timeline for response.

KEI is interested in writing a story for the Huffington Post regarding the role of General Electric in trade negotiations.

As a non-profit organization, KEI requests a waiver for the fees for this request. KEI intends to widely disseminate this information. KEI itself has published or been quoted widely as regards issues of ethics in government, and on the relationship between industry lobby groups and government officials. One recent example of this are the following stories that were based upon a FOIA request to the USPTO regarding communications between the MPAA and the USPTO over a different intellectual property negotiation.

  • Kimberly Kindy, Filmmakers’ group tries to reshape treaty that would benefit the blind, Washington Post, web version, June 22, 2013, print version June 23, 2013.
  • Paige McClanahan, US film industry tries to weaken copyright treaty for blind people: Treaty to make copyrighted works available for visually impaired people – 90% of whom live in global south – coming up against film lobby. The Guardian, Monday 24 June 2013
  • Mike Masnick, MPAA's Actions, Emails Show That They're Doing Everything Possible To Screw Over The Blind: from the how-can-they-deny-it? dept, TechDirt.Com June 24, 2013
  • Catherine Saez, WIPO Negotiators Reach Breakthrough On “3-Step Test” In Treaty For Blind, IP-Watch.Org, Published on 24 June 2013

The above stories demonstrate that in the past, KEI has effectively used FOIA requests to widely disseminate information that is in the public interest. We are willing to provide additional information regarding the fee waiver issue if that is necessary. Thank you.

Sincerely,
Claire Cassedy

On Monday, September 16, 2013, KEI submitted a FOIA request for all correspondence from Thaddeus Burns, Senior Counsel-Intellectual Property and Trade at General Electric, and USPTO, particularly those that reference KEI, the WTO, and TRIPS. Below is the text of the request:

From: Claire Cassedy
To: USPTO FOIA Officer efoia@uspto.gov
Subject: FOIA Request regarding Thaddeus Burns and USPTO
Date: 16 Sept 2013 14:53:11 -0400

Dear USPTO FOIA officer,

Under the Freedom of Information Act, Knowledge Ecology International (KEI) requests all correspondence from Thaddeus Burns, Senior Counsel-Intellectual Property & Trade at General Electric, to the United States Patent and Trademark Office. Particularly important are emails which mention: 1) Knowledge Ecology International, 2) the World Trade Organization and 3) the World Trade Organization Council for TRIPS (TRIPS Council).

The period of the request is from January 1, 2012 to December 31, 2012. We are happy to narrow the scope of this request if it would expedite the timeline for response.

KEI is interested in writing a story for the Huffington Post regarding the role of General Electric in trade negotiations.

As a non-profit organization, KEI requests a waiver for the fees for this request. KEI intends to widely disseminate this information. KEI itself has published or been quoted widely as regards issues of ethics in government, and on the relationship between industry lobby groups and government officials. One recent example of this are the following stories that were based upon a FOIA request to the USPTO regarding communications between the MPAA and the USPTO over a different intellectual property negotiation.

  • Kimberly Kindy, Filmmakers’ group tries to reshape treaty that would benefit the blind, Washington Post, web version, June 22, 2013, print version June 23, 2013.
  • Paige McClanahan, US film industry tries to weaken copyright treaty for blind people: Treaty to make copyrighted works available for visually impaired people – 90% of whom live in global south – coming up against film lobby. The Guardian, Monday 24 June 2013
  • Mike Masnick, MPAA's Actions, Emails Show That They're Doing Everything Possible To Screw Over The Blind: from the how-can-they-deny-it? dept, TechDirt.Com June 24, 2013
  • Catherine Saez, WIPO Negotiators Reach Breakthrough On “3-Step Test” In Treaty For Blind, IP-Watch.Org, Published on 24 June 2013

The above stories demonstrate that in the past, KEI has effectively used FOIA requests to widely disseminate information that is in the public interest. We are willing to provide additional information regarding the fee waiver issue if that is necessary. Thank you.

Sincerely,
Claire Cassedy