II. ECONOMIC CHARACTERISTICS OF THE INTRAOCULAR II-1 -ii III. DISSEMINATION, CLASSIFICATION AND SENSITIVITY III-1 IV. .... RELEVANT THEORETICAL CONCEPTS AND METHODOLOGY IV-1 v. PROBABLE COMPETITIVE EFFECTS OF PUBLIC DIS- IV-9 IV-9 IV-12 IV-12 V-1 E.. Windfall Benefits to New Market Entrants V-16 A. Value of the Present System of Confidential VI-1 1. Unique Ability of Practitioners VI-1 2. Effects of Confidentiality on the VI-2 .3. Effects of Confidentiality on Com- VI-4 B. Possible Consumer Benefits of VI-5 Mr. RADER. Mr. Braverman. STATEMENT OF BURT A. BRAVERMAN, PARTNER, COLE, Mr. BRAVERMAN. Thank you. Last week, in testifying before the House in similar hearings, I characterized my testimony as a confession. It was a confession of advice which I am now compelled to give my clients and advice which my clients are now compelled to follow. It is advice that I do not want to give. It is advice that they do not want to follow, but it has become necessary. The substance of the advice is: Do not cooperate with the Government. Do not give information to Government agencies when requested, and make it more difficult for Government agencies to get this information even when it is required to be submitted. The reason for this advice is quite simple. Over the past 7 or 8 years, the courts have eroded the protection that exemption 4 of the Freedom of Information Act was intended to provide and which it is able to provide. Three factors have contributed to this condition. First, the standard of confidentiality under the exemption has in essence been redefined by the courts-redefined from that which Congress originally intended. The customarily withheld standard which Senator Hatch mentioned in his introductory remarks has been eliminated from the act judicially. Second, agencies have been given total and virtually unrestrained authority and discretion to disclose information, even though it is found to fall within the fourth exemption of the Freedom of Information Act and even though that might injure legitimate commercial interests. Finally, the commercial interests at stake here have been deprived of their rights to obtain de novo review of an agency decision to disclose their valuable information. These factors have created a perception on the part of industry that the Federal Government is either unwilling or unable to protect valuable intellectual property-information that is being submitted to Federal agencies-and that industry can no longer rely upon those agencies to protect that information. Consequently, in response to my advice, my clients have now begun to follow a number of practices designed to make it more difficult for agencies to get this information. For example; some companies simply will not submit it to the agencies. Others now require the Federal representatives to come to their sites to examine the information, but do not allow them to take it back for further use. Still other companies must now make agencies subpena the information and go to court for enforcement of the subpena in a proceeding in which the company can secure protective provisions designed to prevent subsequent disclosure under the Freedom of Information Act of information furnished to the agencies. All of these strategies are designed to make it more difficult for the Federal Government to get this information. Why? Because the Government under the present state of the law, is no longer able to protect this information as Congress intended it would do so when |