On Tuesday, I wrote about the close relationship between the Office of the U.S. Trade Representative, which negotiates U.S. trade agreements, and industry groups that favor stronger copyright and patent protections. New e-mails released by the advocacy group Knowledge Ecology International shine further light on the close working relationship between Obama trade negotiators and K Street lobbyists.
The e-mails were released in response to a freedom of information request by IP-Watch this year. They don't provide much information about the substance of USTR's conversations with industry groups. But there are dozens of e-mails in which lobbyists from the pharmaceutical, medical device, video game, biotechnology and recording industries arranged meetings with senior USTR officials. The close relationship suggested by the e-mails contrasts with the more arms-length relationship public interest groups say they've experienced when they try to influence USTR officials.
One name that comes up frequently in the e-mails is Ralph Ives, a lobbyist for AdvaMed, a trade group representing medical device makers. In Tuesday's story, I quoted an AdvaMed spokeswoman, who said that "neither AdvaMed nor Ives has ever provided USTR comments on a provision of the TPP IP chapter."
The e-mails, which cover a period from 2009 to 2013, demonstrate regular contact between Ives and Jared Ragland, whose title in 2011 was director, Office of Intellectual Property and Innovation at USTR. On two occasions, on March 16, 2011, and Feb. 14, 2012, Ragland e-mailed Ives seeking advice. On two other occasions, on Sept. 20, 2011, and March 16, 2012, Ives e-mailed Ragland asking for a meeting.
The e-mails also show that Ives participated in a Feb. 1 conference call between USTR officials and industry lobbyists arranged by Medtronic lobbyist Trevor Gunn. On Jan. 22, in an e-mail with the subject line "TPP IP Issues," Gunn wrote that USTR official Probir Mehta "has confirmed a meeting for the following individuals, representing ITAC3 on TPP IP issues." ITAC3 is a USTR advisory committee representing pharmaceutical and medical device companies. Ives was one of six individuals listed as participating in the meeting, and subsequent e-mails suggested he joined the meeting by phone.
On Wednesday, an AdvaMed spokeswoman told me that the intellectual property chapter of the TPP was not discussed at any of these meetings. She noted that "Ragland was the lead negotiator for the transparency issues and procedural fairness provision of the TPP." She says that those issues, not IP issues, were the focus of Ives's conversations with Ragland.
As for the "TPP IP issues" e-mail, AdvaMed says that Gunn is simply in the habit of using "TPP IP issues" as a shorthand for all of the issues that he works on, which also includes non-IP issues of interest to medical device companies. The AdvaMed spokeswoman, after consulting with Ives, said that despite the meeting's title, intellectual property issues did not come up during that Feb. 1 conference call.
The documents suggest that USTR interacts differently with industry insiders seeking to influence its policymaking than it does with public interest groups seeking to do the same. The e-mails contain numerous references to "cleared advisors," individuals to whom USTR has granted access to confidential documents. Numerous companies and industry groups have had their personnel named as cleared advisers, and many of the meetings described in the e-mails were limited to cleared advisers so that confidential matters could be discussed.
In contrast, few public interest groups have been named as cleared advisers. Indeed, a USTR spokeswoman couldn't name any examples of non-industry public interest advocates who have been cleared to advise USTR on IP issues. That severely limits the ability of public interest groups to have productive conversations with USTR officials, some of those groups say. "I can walk up to the front of the Department of Commerce building and tell them everything I think," says Sherwin Siy, an attorney at the advocacy group Public Knowledge. "It doesn't mean a thing unless we know what's in the text."
Another difference: the e-mails show that USTR doesn't just take meetings with industry advocates, the agency also regularly solicits their advice. As we've seen, Ragland asked Ives for advice on two occasions. On another occasion, July 24, 2012, USTR's Stanford McCoy e-mailed Jay Taylor of the pharmaceutical industry group PhRMA: "Can we possibly have a cleared adviser meeting Thursday or Friday of this week? I’d like to get up to speed on your concerns about medpharm and get a fresh start on the way forward."
Peter Maybarduk, who works on pharmaceutical issues at the advocacy group Public Citizen, says that he never gets e-mails like that from USTR. "We don't get any request for our take on this or that. If we ask to meet with Probir [Mehta of the USTR's Office of Intellectual Property and Innovation] for example, he'll meet with us. We'll have a conversation. Those conversations have gotten better over time. But it's a complex diplomatic exercise, it's not like a frank exchange of information about what is actually happening."
To be sure, there's nothing wrong with government trade negotiators soliciting the advice of industry groups. Those groups have valuable information that should be taken into account as the government formulates its negotiating priorities. But the e-mails released this week underscore the gap between the government's close working relationship with industry groups and the difficulty public interest groups have had in influencing USTR's work on copyright and patent issues. Industry lobbyists appear to enjoy much easier access to both confidential TPP documents and the government officials who are involved in drafting them. Public interest groups have become frustrated that they do not have the same opportunity to make their case to senior policymakers at USTR.