Civil Enforcement

Rethinking US IP Diplomacy: The Role of Civil Remedies

The National Bureau of Asian Research just published my article on  “The Criminal Bias in US Intellectual Property Diplomacy” today (July 22, 2021).  I was asked to prepare the article after I appeared before the Commission on the Theft of American Intellectual Property, where I spoke before Adm. Dennis Blair,  Amb. Jon Huntsman, Secretary of State Madeleine Albright and others on the current environment for IP Protection in China.  I noted at that time that US trade diplomacy is under-emphasizing civil remedies.  In my view, the focus of US trade diplomacy on increasing criminal IP enforcement is inconsistent with US domestic policies of utilizing criminal remedies when a civil remedy is inadequate as well as our international goals of protecting of IP as a private property right and incentivizing market mechanisms in economies such as China. 

This short opinion piece does not fully capture the many years of discussions I have had around this topic.  I am certainly not against US diplomacy that advocates, in an informed manner, for criminal remedies as a social deterrent when there are inadequate available civil remedies.  However, robust civil remedies should be the primary mechanism for protecting IP, as is identified in the TRIPS Agreement Arts. 41 et seq.   

The recent EU Article 63 request is  good example of how to leverage existing WTO mechanisms to promote more effective civil enforcement by requesting greater transparency and clarity from China concerning civil remedies.      

Thank you, NBR for this opportunity!

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