Why does China increasingly treat intellectual property as a strategic instrument of national development, international influence, and global governance while the United States often continues to view it primarily through the lens of enforcement and compliance? Building on my recent article with former USPTO Director David Kappos in The National Interest, this essay argues that intellectual property should be viewed as a central issue of foreign policy rather than as a specialized area of law. Recent Chinese writings emphasize the development of an indigenous intellectual property knowledge system and greater international “discourse power,” while U.S. policy remains focused on criminal enforcement campaigns and “IP theft.” If the United States wishes to preserve a market-oriented international intellectual property system, it must modernize its own laws, renew engagement with China’s civil IP institutions, emphasize transparency and private rights, and recognize that competition increasingly extends to the institutions, concepts, and norms that will govern the future of innovation.
Data as Intellectual Property: China’s Experiment
This article analyzes China’s Data IP experiment based on the “Three Types Separation” rule from the 2022 Data Twenty Measures. Three parallel registration systems run by the China National Intellectual Property Administration, the National Data Administration and the Ministry of Finance regulate data IP, data property rights, and data assets respectively. Pilot results and Zhejiang surveys reveal domestic private enterprises dominate registrations, mostly for internal data product development. Courts treat Data IP certificates as preliminary evidence under the Anti-Unfair Competition Law. Despite booming registration volume, institutional coordination and immature data trading markets remain challenges for the system.
Measuring FRAND Value in ZTE v. Samsung
China’s recent global FRAND determination in ZTE v. Samsung has attracted attention because it valued ZTE’s SEP portfolio at nearly twice the level of a contemporaneous English court decision. This article argues that the more important issue is not the royalty rate itself, but the methodology used to measure technological contribution. The Chongqing court relied heavily on declared SEP-family shares, portfolio metrics, territorial weighting, and other quantitative indicators that are closely associated with longstanding Chinese innovation policies encouraging patent accumulation, standards participation, and portfolio expansion. By comparing the decision to earlier Chinese FRAND jurisprudence, the English Samsung decision, USPTO research, and broader debates over Chinese patent statistics, the article explores whether these metrics accurately measure technological contribution or instead reward portfolio scale and geographic concentration. The case may signal an important shift in Chinese FRAND adjudication from disputes over the meaning of FRAND to a deeper debate over how FRAND value itself should be measured.
China’s Patent Injunction Report: Key Insights and Recommendations
Should China make injunctions more difficult in patent civil cases? A recent report from a Chinese think tank makes the argument for such changes. The change, if implemented, could particularly impact foreign rights holders.
The WTO’s Arbitral Decision on Chinese SEP Practices in DS/611: Getting Closer to the Right Kind of Decision
On July 21, 2025, the arbitrators in DS/611 (the EU complaint regarding Chinese SEP practices) made their decision on the appeal from the initial panel decision. From my perspective, this decision was […]
The Revised US-China Science and Technology Agreement – A Narrow Bridge To Drive Further Cooperation
The State Department has recently posted the revised US-China Science and Technology Agreement. The revised agreement was concluded in the waning months of the Biden Administration. The revised STA is more narrowly focused on government to government cooperation. It only partially addresses the range of IP-related issues. Nonetheless, it provides a framework for future cooperation.
US-China Tech Competition Workshop And Other Events
Asia Society is hosting a virtual workshop on US-China tech competition on February 4, 2025. In addition on February 6, 2025, Pomona College is hosting a lecture on the challenge of translating FRAND into Chinese.
House Judiciary Committee Holds Hearing on Patents, Standards and Lawfare
On December 18, 2024, I was honored to testify before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet. These hearings were on “IP and Strategic Competition with China.” […]
Some Observations on SAMR’s New Antimonopoly Guidelines for SEPs
SAMR’s new Antimonopoly Guideline for SEPS suggests possible new enforcement pathways for the agency, including areas that may be of concern to foreign licensors.
CHINESE THREE DIMENSIONAL SEPS: RECENT CASES, THE WTO, AND TRANSPARENCY
Three major court decisions involving SEPS, patents and foreign companies have been recently decided in China. In addition, the EU has recently released two of its submissions to the WTO regarding its dispute with China on antisuit injunctions. Nokia has also announced a global settlement with Oppo. What does the future hold for SEP litigation in China and the WTO dispute?
China IPR - Intellectual Property Developments in China 