On February 18, 2022, the EU filed a request for consultations at the WTO regarding China’s SEP practices as well as China’s failure to respond to the prior Article 63 transparency request regarding certain SEP cases and judicial practices that the EU filed in July of 2021. China formally responded to that request in September 2021. However, China did not actually provide copies of the cases. The EU request for consultations is here. A request for consultations is a necessary first step towards a formal WTO dispute. After sixty days of consultations, a panel may be established to render a decision on the dispute.
Regarding the substance of the complaint, I had previously raised the lack of support by the United States of the EU Article 63 request as “puzzling”. According to Reuters, the EU has consulted with Japan and the United States with respect to this new request. We will have to wait and see what the reaction is from all WTO members.
Students in the Chinese IP classes that I taught at Berkeley and Fordham may experience a sense of déjà vu about this request. For over 10 years, I have used a “moot court” of a hypothetical Article 63 dispute. This moot court evolved out of the prior US Article 63 request that was filed in connection with the “IP enforcement case” against China about 15 years ago (DS362). As I noted in the blog, my classes reacted to that hypothetical by observing that “there was a greater challenge [at the WTO] in determining how IPR cases are actually being enforced within a country’s borders, which distinguishes such cases from Customs or other trade cases which … are known to traders who must comply.” In my recent interview with the National Bureau of Asian Research regarding the Phase One Agreement I again urged that “We … need a higher degree of transparency from China. China did not commit to greater overall IP transparency in phase one.” The word “transparency” appears only once in the IP chapter of the Phase One Agreement in connection with geographical indications. There was no commitment to greater judicial transparency in publication of cases.