In 2013, IP experts from the U.S. and China engaged in-depth discussions on the most complex and challenging IP issues facing China.

Background

Following the acceleration of new scientific and technological developments and the transformation to global industries, intellectual property rights (IPR) are playing an increasingly important role as a strategic resource in international competition. Both U.S. and China IP systems need to be adjusted to adapt to the new realities. China is implementing an innovation-driven development strategy targeted at building China into a true innovation-oriented country by 2020, and unquestionably, IPR protection will play an important role during this process.

The experts unanimously agree the Dialogue is an important part of the bilateral exchanges between the United States and China on IPR matters, and will help the two countries address the new challenges together, deepen mutual understanding, and promote cooperation.

The experts conducted effective discussions on a wide range of topics relating to the protection and enforcement of IPR. Consensus emerged that effective IP enforcement must be built across all the fields of IP based on the rule of law.

The experts expressed a range of views, including differences on some issues and consensus on others, and identified areas for further research.

Executive Summary

The Dialogue generated the following forward-looking ideas and practices:

• A “guiding case system” provides timely and authoritative guidance nationwide for enforcement and judicial authorities. The continued development in China of this system will allow the law and public understanding of the law to move more swiftly than legislative amendments, keep pace with the marketplace and technology, and help improve the consistency and uniformity of IP adjudication.
• Examine the current system of granting evidence preservation and property preservation orders to IPR owners in Chinese courts.  Encourage Chinese courts to apply the existing legal criteria to award damages.
• Make use of Criminal enforcement of IPR to provide effective deterrence against future theft and encourages compliance with the existing laws. Adjustments to the criminal protection system will help resolve many key problems in the enforcement of IPR, such as adjustments to the “for profit” determination.
• To enhance the progress already made in the seizure of counterfeit and pirated exports, China Customs must be fully resourced, and engaged with global partners.
• Amendments to the Copyright Law will modernize China’s copyright protection to help meet current challenges for industry in the areas of online copyright protection, software piracy, live sports programming, non-interactive streaming, and technical protection measures. In additional, amending the Criminal code to address criminalization of various copyright offenses should also provide the needed deterrence.
• On trademarks in China, challenges from bad faith registrations, cross borders enforcement challenges, and the involvement of both online and express mail services adversely impact the economy and endanger consumers. Positive measures must be taken to address these challenges in China. The courts play the central role in adjudicating patent cases. The theft of trade secrets, e.g., stealing of encryption codes, engineering documentation, and other knowhow, whether the victims are foreign or domestic entities, is not tolerable. It is necessary to increase the courts’ and companies’ awareness of the value of trade secrets and improve trade secret enforcement in civil and criminal proceedings.