New Proposals on Science and IP Cooperation with China

I previously blogged about several China-oriented proposals released after the November elections here. Three additional proposals have recently been released that involve how the USG engages China on IP and innovation issues.

1.The Day One Project has released a Transition Document for the US Patent and Trademark Office [USPTO].   There are several recommendations that directly or indirectly affect USPTO engagement with China. The recommendations include: establishing a USPTO bureau of economics; developing an interagency China task force on innovation and IP policy where PTO plays an active role; raising the rank of the IP Attaches (which to a degree has already been accomplished);  engaging the new Administration on what PTO’s role should be on China IP policy, including the role of outreach initiatives: and establishing a new Deputy Under Secretary for International Affairs. Note that I contributed to this report.

2.On January 15, 2021, President-elect Biden wrote an appointment letter to his new Science Adviser, Dr. Eric Lander, of the Broad Institute. Paragraph three of that appointment letter sets forth the President’s concerns about science and technological competitiveness with China.  The focus is on American domestic competitiveness. The letter asks Dr. Lander: “How can the United States ensure that it is the world leader in the technologies and industries of the future that will be critical to our economic prosperity and national security, especially in competition with China?”  The letter further notes: “Other countries—especially China—are making unprecedented investments and doing everything in their power to promote the growth of new industries and eclipse America’s scientific and technological leadership. Our future depends on our ability to keep pace with our competitors in the fields that will define the economy of tomorrow. The right strategy for the United States will necessarily differ from that of our competitors, but it will also likely differ from our own past playbook. What is the right level of national investment, and what are the pillars of a national strategy that will rapidly propel both research and development of critical technologies?….” 

This letter does not mention how Dr. Lander could be tasked with more deeply integrating IP, trade, export controls, CFIUS,  visa policies and other areas with our science and competitiveness strategies.  These issues demand a more effective inter-agency  approach.  Nonetheless Lander will bring the rich experience  that the Broad Institute already has in IP and licensing in the US, China and other countries.  This experience can help in engaging the US government in integrating science policy more deeply into trade and IP issues.

3. Ambassadors Earl Anthony Wayne and Shaun Donnelly have recently written an article in The Hill, “Biden’s Trade Policy Needs Effective Commercial Diplomacy.“ The article advocates for an interagency approach to better support US companies overseas, including by advancing greater market access.   Apart from advocating for more diplomatic intervention in technology norms, it does not discuss how commercial diplomacy should advance the ability of US companies to commercialize technology and technology-intensive products.  Technology-related commercial diplomacy involves a more challenging skillset than many other areas. It has long been inadequately staff by the US commercial service, due to its legal and technical complexity, and the lack of familiarity of commercial officers with how deals are done. Without understanding how companies conclude individual deals on genetic editing, video compression technology, or a new plant variety, or how United States universities commercialize their technology overseas, it can be very difficult to understand market barriers that need to be raised “wholesale” in a trade context. Commercial diplomacy on technology is critical to understanding how the US should raise technology concerns. To paraphrase an earlier blog: “Are there any foreign commercial service officers posted overseas that have technology promotion as an export goal? Has the US census changed its antiquated reporting system where it reports technology transfer as exports of ‘industrial processes’– whatever that means… the US [sh]ould at least take steps inside our own government to improve  our knowledge and engagement on these issues.”

The forthcoming Berkeley-Tsinghua Transnational IP Litigation Program is likely to strongly endorse more data-driven approaches to bilateral IP issues, including the use of negotiation and collaboration as diplomatic tools to advance IP protection and mutual understanding.  In addition to the many speakers that will be addressing practical issues, Prof. Zhang Yuejiao (formerly of MofCOM and the WTO Appellate Body) is expected to keynote about the role of trade negotiations and cooperation in promoting IP protection.  Dr. Yang Guohua served as China’s first IP Attaché to the United States and was also part of the pioneering cooperative mechanism between the EU and China.  ktMINE will look at cross-border licensing flows and the impact of the trade war.  Their presentation will be part of a data-oriented panel on the impact of the trade war.  Dean Erwin Chemerinsky of Berkeley Law, a leading constitutional law expert, has expressed concern in a statement filed in the Wechat litigation about the US government being motivated by  “anti-Chinese animus” in its sanctions effort.  Susan Finder and Judge Jeremy Fogel (ret) will also be talking about the steps that courts need to take to make their IP systems more attractive for resolution of international IP disputes.  Judge Fogel has been involved in WIPO projects involving IP judges.  Both of these speakers will likely be addressing the role of enhanced international judicial cooperation.

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