Why intellectual property should be at the center of American foreign policy.

The National Interest published an article on July 13, 2026, by former USPTO Director David Kappos and me entitled How China Is Winning the Global Intellectual Property Race. The article drew on years of bipartisan testimony and advocacy by Mr. Kappos, former PTO Director Andrei Iancu, me, C4IP, Senator Thom Tillis, and others regarding the need for the United States to reverse judicial erosion of patent-eligible subject matter, restore stronger injunctive remedies, reject compulsory licensing of pharmaceuticals, and respond to China’s increasing success in securing first-mover advantages in frontier technologies and even frontier intellectual property practices, such as experimenting with new forms of AI data protection.

Before finding a home in The National Interest, the article had been rejected by a leading American foreign policy journal. That outcome is itself telling. Although recent years have witnessed growing attention within the foreign policy community to the intersection of technology and national security, intellectual property has too often been treated as a subsidiary issue, rather than as an independent subject of foreign policy or as both a driver and an indicator of broader geopolitical, economic, technological, and legal developments. Our article sought to place intellectual property where it belongs: at the center of discussions concerning technological competition, innovation, international economic leadership, collaboration, and the future of the rules-based international order.

Ironically, while our article argued that intellectual property belongs at the center of international affairs, a remarkably similar proposition was simultaneously being advanced in China, but from a different perspective.   A leading Chinese intellectual property scholar Ma Yide, has argued in recent articles published in official Chinese publications, including China Social Sciences Daily  and People’s Daily that China should develop its own intellectual property knowledge system, strengthen its international “discourse power,” integrate intellectual property more closely into China’s national development strategy, and contribute Chinese theories and practices to the future development of global intellectual property governance. Whether one agrees with this vision or not, it reflects a broader trend. China is no longer content merely to participate in the international intellectual property system; it increasingly seeks to shape its underlying concepts, institutions, and norms. The recent proposal to establish a Word AI Cooperation Organization in Shanghai, is consistent with this broader effort to influence the future architecture of international technology governance. For too long, the United States has viewed intellectual property primarily as an issue of compliance; China increasingly views it as an instrument of national development, international influence, and global governance.

U.S. policy, however, often remains anchored in an outdated view of China. The Phase One Agreement, for example, repeated the familiar refrain that China should conduct special intellectual property enforcement campaigns. Similar demands have been made over thirty years. Yet the emphasis on criminal and administrative enforcement elevates the role of the state rather than strengthening the protection of private rights. These commitments also remain largely unverifiable because the United States has not insisted on corresponding commitments to transparency, including the prompt and comprehensive publication of judicial decisions, administrative decisions, and enforcement data. The United States has also been inconsistent in insisting upon transparency in China’s civil judicial system. As our article notes, the United States even argued in the WTO dispute concerning standard-essential patents (DS611) that China was not obligated to disclose unpublished judicial policies. As I have argued elsewhere, the continuing emphasis on “IP theft” distracts policymakers from the much more important role played by China’s civil intellectual property system. It has also contributed to a longstanding criminal bias in U.S. intellectual property diplomacy, despite the central role that civil remedies play in the American intellectual property system.

The decline in sustained engagement between USTR and other U.S. agencies and their Chinese intellectual property counterparts, the lack of emphasis on verifiable commitments through transparency, and the avoidance of sustained engagement with China’s civil intellectual property system have, in my view, left rights holders in an increasingly difficult position. Equally troubling, the United States unnecessarily abandoned WTO litigation after bringing cases involving customs enforcement and criminal sanctions, rather than pursuing broader issues affecting private rights holders, including civil remedies. In my view, these strategies represent a series of missed opportunities at a critical time to strengthen the international legal framework protecting private, market-oriented intellectual property rights.

About a decade ago, I proposed to Fordham Law School that its annual international intellectual property conference address the topic, The Future of Intellectual Property in a China-Dominated World. As I discussed the proposal with Professor Hugh Hansen, I sensed that he regarded the topic as unduly pessimistic. Regrettably, the line between pessimism and realism is often quite thin. Increasingly, the market-oriented civil intellectual property system that the United States helped construct in the postwar era is itself under pressure. Even more troubling, many of these pressures have resulted from changes in U.S. law and policy rather than from external demands.

If the United States hopes to preserve a market-oriented international intellectual property system, it must fundamentally reassess its diplomatic strategy. It should treat intellectual property primarily as a private right rather than principally as a criminal or administrative enforcement issue; support the continued development of efficient and transparent intellectual property markets in China; insist on greater transparency in both judicial and administrative decision-making; modernize important aspects of U.S. intellectual property law, including patent eligibility and remedies; and understand China’s increasingly important role not only in applying intellectual property rules, but also in shaping the institutions, concepts, and norms that will define the next generation of the international intellectual property system. Those institutions and norms may increasingly reflect a more state-centered conception of intellectual property than the market-oriented system the United States has traditionally championed.

If we continue to rely on past successes while failing to articulate a compelling case for market-oriented approaches to innovation and intellectual property, we should not be surprised if another country assumes the leadership role that the United States once occupied.