For the past few years, I have been conducting moot court simulations of DS/362, the WTO US-China IPR “enforcement case” with students and colleagues at Fordham University and elsewhere. The heart of DS/362 was the US’s argument that, by establishing prosecution and conviction thresholds that were too high, China did not provide an adequate criminal remedy to address commercial scale counterfeiting and piracy. The WTO panel determined that the United States had not made out an adequate case that China did not, in fact, provide such protection. The U.S. argued that China had not complied with an earlier request, under “Article 63” of the TRIPS Agreement, to provide additional data (including cases) about its IPR enforcement system that would have been germane to the case, while the panel believed that such data would not have been difficult to obtain. Continue reading
The President mentioned China four times in his State of the Union address on January 24, 2012. Although it’s a bit unclear what his game plan is, it seems that he is looking closely at IP-related claims. “It’s not right when another country lets our movies, music, and software be pirated,” Obama said: “Tonight, I’m announcing the creation of a Trade Enforcement Unit that will be charged with investigating unfair trade practices in countries like China. “
What will be the nature of this Trade Enforcement Unit? During the Bush administration, a “top to bottom” review at the U.S. Trade Representative’s office resulted in the creation of a China trade enforcement unit within USTR that took the lead on China trade cases at the WTO. Claire Reade, the current Assistant USTR for China was the head of that unit. Continue reading
Looking back on 2011 and into 2012, it has been a year with considerable transition for individuals following IP issues in China.
There were some important lateral changes in the private sector. With the Hogan Lovells merger, Doug Clark went to Hong Kong, and Horace Lam left Hogan Lovells for Jones Day in China. Former Supreme People’s Court IPR Chief Judge, Jiang Zhipei, left the Fangda Partners for King and Wood. Meanwhile, King and Wood, which already had a large China IP practice, merged with the Australian law firm, Mallesons, which has a Chinese IP practice. Amongst the more recent retirees from the Chinese government, Xu Chao, of the National Copyright Administration, and Yin Xintian, of the State Intellectual Property Office, both left the government for the Wanhuida law firm. An Qinghu, the former Director General in charge of the Chinese Trademark Office, also left his parent agency, the State Administration for Industry and Commerce, to work for the Chinese Trademark Association. Continue reading