The 2014 JCCT was hosted by the US government in Chicago, Illinois this year. Here is a link to the updated English fact sheet (released Dec. 29) (Chinese:第25届中美商贸联委会联合成果清单) that is now a joint fact sheet. Here is a summary of the IP accomplishments of this year’s JCCT according to the joint fact sheet:
One significant outcome involved “technology localization” which is the practice whereby China grants tax preferences based on where IP is owned or R&D is undertaken. Here is what the fact sheet says about the outcome in this area:
The United States and China commit to ensure that both countries treat intellectual property rights owned or developed in other countries the same as domestically owned or developed intellectual property rights. ..Both China and the United States confirm that the government is entitled to take measures to encourage enterprises to engage in research and development and the creation and protection of intellectual property rights.
In my personal estimation, the significance of this outcome is that China committed to not discriminating in awarding tax preferences based on where IP is owned. To a degree this reflects footnote 3 of the TRIPS Agreement, which prohibits discrimination in “protection” of IP, which includes “matters affecting the use of intellectual property.”
Regarding service invention compensation, which has been important to readers of this blog, the JCCT commitment reflected the accomplishments of the 2014 Innovation Dialogue regarding freedom of contract:
The United States and China commit to protect the legal rights of inventors in respect of their inventions and creations, in accordance with their respective domestic laws and regulations, and in line with their domestic laws, commit to respect the legitimate rules and regulations developed by employers and legitimate contracts between employers and inventors concerning inventor remuneration and awards.
Another JCCT outcome involved protection of trade secrets in government regulatory proceedings:
The United States and China confirm that trade secrets submitted to the government in administrative or regulatory proceedings are to be protected from improper disclosure to the public and only disclosed to government officials in connection with their official duties in accordance with law…
The rather “hot” issue of geographical indications was also the subject of an “outcome” involving not extending GI’s to generic terms and establishing procedures to object to and cancel the registration of the GI.
There were also a number of cooperative commitments which will likely be a focus of various bilateral discussions and programs, including on technology licensing, bad faith trademark registrations, judicial best practices, data supplementation for pharmaceutical patents, IP in standards setting, sale of IP-intensive goods and services, and addressing on-line infringement.
The revised joint fact sheet also includes a joint commitment on abusive litigation:
Patent Protection and Bad Faith Litigations
- The U.S. and China remain committed to promoting a robust intellectual property system that will incentivize future innovation and economic growth in both countries. Both parties are to strengthen cooperation to protect innovators from bad faith litigations, including to hold a joint seminar on IP licensing, so as to create positive conditions for innovation.
There were also outcomes that weren’t focused on IP but have significant IP implications. One involved medical device and pharmaceutical market access, where China committed to accelerate approval procedures, which has long been hampered by inadequate resources at China’s Food and Drug Administration. Another involved clarifying standards for antimonopoly law enforcement, including providing for greater due process and law firm access. Still another commitment involved collaboration on law firm market access, which certainly affects foreign IP lawyers practicing in China.
In my personal experience, this 25th JCCT might equally be labeled JCCT v. 3.0. The JCCT has changed to accommodate the growing complexity and importance of US-China trade. In its first version (1983 to approximately 2001), the JCCT was as often a rather sleepy technical exchange mechanism. I remember attending an early JCCT dealing with the enforcement of arbitration awards. Another iteration (v 2.0) was under the leadership of Vice Premier Wu Yi after China’s WTO accession. The JCCT then became a mechanism for negotiating trade issues with the Vice Premier chairing on the Chinese side and the Secretary of Commerce and US Trade Representative as formal co-chairs, but with an important added role for the Secretary of Agriculture. Version 3.0 includes the same leadership structure, but with more involvement by industry and the host locality through various programs and symposia, joint fact sheets, and commitments to move negotiations changes in the negotiating calendar, including “a year of continuous work to address important issues facing our two nations.”
The above are my personal, non-official observations.
Categories: AML, Anti-trust, Chicago, Competition, Data Supplementation, Geographical Indications, JCCT, MofCOM, Pharmaceutical Patents, SAIC, Trade, Trade Secret, Trade Secrets, Trademark, Unfair Competition, USTR, WTO
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