Orrin Hatch: “As this correspondence indicates, I am particularly concerned by the so-called non-discrimination clause that suddenly…”

“As this correspondence indicates, I am particularly concerned by the so-called non-discrimination clause that suddenly materialized, almost out of the vapors, and was added to the conference report at the last moment. I would also note for the record that, prior to learning that such language was under development, I contacted Chairman Cochran and the majority leadership with a request that a rule of construction be added to these ill-advised importation provisions to the effect that the language be neutral with respect to intellectual property rights. Imagine my surprise and disappointment to find that not only was my modest proposal, which was consistent with every version of the bill that passed both the House and the Senate up to that point, not adopted, but, instead, all too discriminatory 'non-discrimination clause' incorporated in its place. This provision states: 'No manufacturer of covered products may enter into a contract or agreement that includes a provision to prevent the sale or distribution of covered products imported pursuant to subsection (a).' Make no mistake that this clause appears to take direct aim on some of the most traditional of American commercial rights such as freedom to contract and the freedom to license patent rights.”