It would be difficult to find a US government decision that implicates more of my recent writings than the extension of the bilateral Science and Technology Agreement (the “STA”)  between the United States and China (December 13, 2024). The revised STA was recently published by the State Department. 

I have previously  spoken extensively about the symbolic and practical importance of renewing and revising the STA. The STA was one of the earliest bilateral agreements.  Over the years, it has likely benefited China more than the United States.  Today, as China has emerged as a technological leader in various fields, the United States can benefit from engaging with China.  Moreover, as measured by forward citations, some of the highest quality scientific research in the last several years has involved co-authored scientific publications. Bilateral cooperation is likely necessary to address challenges that our planet and its people may encounter in the years ahead, such as a new pandemic, global warming, or other challenges.

One particular concern at that time was the contradiction between the STA’s provisions on shared ownership of IP rights derived from bilateral cooperation and the provisions of China’s Administration of Technology Import/Export Regulations (TIER), which mandated that any technology developed in the territory of China belonged exclusively to the Chinese side, and that the foreign party had to indemnify the Chinese party for IP and other risks.  My concerns over the TIER and its relationship to the STA were reflected in a Governmental Accountability Office report,  “Bilateral Clean Energy Programs Show Some Results but Should Enhance Their Performance Monitoring” (2016), which noted:

The U.S. Patent and Trademark Office has identified a potential discrepancy between Chinese law [the TIER] and the bilateral U.S.-China Science and Technology Agreement…according to U.S. Patent and Trademark Office officials. These officials stated that the potential discrepancy is related to ownership of any improvements made to IP licensed between U.S. and Chinese entities.

The TIER provided:

24. Where the receiving party to a technology import contract infringes another person’s lawful rights and interests by using the technology supplied by the supplying party, the supplying party shall bear the liability therefore.

27: Within the term of validity of a contract for technology import, an achievement made in improving the technology concerned belongs to the party making the improvement.

As I stated in August 2023:

The TIER required that China own any improvements to technology developed in China; the STA mandated equitable sharing arrangements.    Moreover, the Ministry of Science and Technology (MoST) alone could not resolve this conflict.  The TIER was a regulation adopted by the State Council and was therefore legally superior to the MoST-drafted and negotiated STA.  Higher-level political involvement was necessary.

The United States filed a WTO case challenging the TRIPS-compatibility of the TIER in March 2018, as it discriminated between foreigners and Chinese in regulating technology transfer.  As a result of that effort, the TIER was revised in March 2019.  Notwithstanding the legal difficulties posed by the TIER, a revised STA with a new IP chapter was signed by the Trump administration in September 2018.  The revised IP annex side-stepped the provisions of the TIER by (a) urging negotiations between both sides regarding ownership of any codeveloped IP and (b) providing that the rights of researchers could be determined by their status as a visiting researcher or employee of either side.  For example, the September 2018 STA states:

[A] visiting researcher may discuss and determine the allocation of rights to any intellectual property created by the visiting researcher. The Parties further warrant and shall ensure that any such determinations as to the allocation of rights to any intellectual property are not inconsistent with any measure, including present or future measures addressing inventor remuneration for service inventions.

These IP amendments provided the foundation for the December 2024 STA renewal. Nonetheless, significant issues were left over from the previously revised STA, which were not addressed in the March 2019 or December 2024 revisions. Here are two such concerns:

[T]he “Regulations on Inventions and Creations Completed by Chinese Scholars Abroad” (1986) … requires Chinese scholars overseas to reveal potential patent disclosures to the Chinese embassy in certain circumstances. It should be addressed in the context of our scientific collaborations with China. I also believe that we should strongly encourage CNIPA to drop its procedures that permit anonymous filings of patents, which thereby facilitate the conversion of trade secrets into patents against the interests of the rightful innovator.

Rather than address a full range of issues, the 2024 revisions suggest that a determination was made during the waning months of the Biden Administration to narrow the scope of the STA and not flag the IP-related risks.  Here are some of the key points:

1. The revised STA now only addresses government-to-government cooperation.  Private sector activities are not protected.  However, private sector participants are often more vulnerable than government participants, particularly during challenging political times.  I believe excluding private sector participants from government-to-government S&T cooperation unnecessarily disadvantages it.
2. The scope of cooperation is narrowed to avoid collaborating on sensitive technologies and to pre-clear technological collaboration within the United States government.
3. TIER-type issues continue to survive in the Chinese mistranslation of the STA text.  The revised STA states in English: “Cooperative activities under this Agreement shall be subject to the laws and regulations in each country, and consistent with each Party’s international obligations.”  The TIER was, in fact, a “regulation” of the State Council.   The Chinese text translates “regulation” as an “enactment” (规定).  Enactments are lower in status than a “regulation” and are not binding on the courts (Art. 73, Law on Legislation).  This Chinese translation could facilitate revocation of the STA’s provisions on ownership and indemnification of technology through low-level “enactments”. It could introduce a back-door re-adoption of the TIER.
4. The revised STA now includes data management provisions, which need to be evaluated against the evolving legislative and regulatory schemes of China and the United States federal and state governments.
5. The revised STA declines to include an exchange of information on IP outcomes, particularly patenting, which has been a problem in the past.

The December 2024 STA is a narrow and weak bridge to support US-China S&T relations.  Nonetheless, it is better than not having a framework at all.  A more comprehensive STA could have been a more effective way to encourage S&T cooperation between China and the United States.  It could also contribute to rebuilding trust between our two economies.

Latest news (April 30, 2025): Press reports suggest that the State Department will close the office responsible for bilateral science agreements. A better approach might be to create an interagency office, which could consist of the State Department, the Office of Science and Technology Policy, and the USPTO, and could negotiate, implement, and review the accomplishments of science agreements. Such an office could also focus on crafting durable model agreements that can serve as model texts for bilateral agreements with many countries and support informed and responsible scientific engagement with partners other than the United States. As the largest exporter of technology in the world, the United States should continue to engage by supporting responsible public and private sector scientific cooperation. See https://sciencebusiness.net/international-news/us-set-close-office-responsible-global-science-and-technology-deals,