China’s Emerging Intellectual Property Edge and the United States: Lessons From the US-China Trade War in IP or IP and Frontier Technologies: Artificial Intelligence, Metaverse and Critical/Emerging Technologies Mark A. Cohen April 2024/ May 2025 www.chinaipr.com/
[email protected] First - Underlying Principles Never before had IP been the prime instigator in a major global trade war. Or was the war about: Trade deficits National security/emerging powers Competition Why now? Long overdue? Just in time? If IP was the cause…the Chinese IP regime has improved remarkably in the last 10 years Three Myths (Dan Prud’homme/Harvard Business Review) State-sponsored IP Theft is Ubiquitous China’s IP Regime is Categorically Weaker and Less Business Friendly China is not a liberal democracy; its Institutions Will Never Respect IP Other myths US seeking to control China’s development US pressure on China has not been positive US policy in IP has been consistent towards the same ends.
Basic Concepts Generally define IP by reference to the TRIPS Agreement or Treaty on founding of WIPO Patents – new, useful, non-obvious/technical (“IP 5”, EPO/USPTO/JPO/KIPO/CNIPA/other forms of collaboration) Design patents Trademarks – source identifier Copyrights – creative expression expressed in tangible form Often culturally defined Trade Secrets – IP right or control of unfair competition Other rights: Geographical Indications Privacy/data protection Internet copyright Regulatory data protection (pharmaceuticals) Others Civil remedies for all IP rights/criminal more limited Deterrent remedies/preliminary injunctions and final injunctions/transparency obligations/right to independent counsel, etc. How expeditious? See https://www.nbr.org/publication/the-criminal-bias-in-u-s-intellectual-property-diplomacy/ Most favored nation treatment and national treatment
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