draft2 thesis
TRANSCRIPT
Thesis: Technology Transfer and IP Law in China
Abstract
How does IPR Protection in China affect foreign technology transfers from the United States and likewise, Chinese technology transfers abroad? How will domestic innovation within China affect China’s domestic IP law protection? As China’s economy has grown and expanded, the US has grown somewhat fearful that China will surpass it in international trade and political power. To counterbalance this fear, the US has begun blocking Chinese high technology product imports into the US domestic market, using Section 337 of the USITC and Section 557 of the Continuing Appropriations Act as protectionist measures in the name of intellectual property right protection and national security. Chinese telecommunications companies Huawei and ZTE, for instance, were blocked from entering the US for these reasons. This thesis will first explore the Chinese legal system concerning intellectual property and unfair competition. and how it relates to Chinese high technology trade around the world. Through legal case studies and interviews with international attorneys, this paper concludes that although China’s legal system is still developing, it is becoming increasingly more important as China enters the international trade arena. Furthermore, as Chinese domestic innovation continues to grow and develop, it will have no choice but to uphold its own domestic IP regulations in order to protect its own innovations. Introduction
This thesis is about intellectual property law protection in China and how it affects foreign technology transfer to China and Chinese technology exports to other countries such as the United States. I will focus mainly on protection of utility patents within China, Chinese exports that infringe US patents, and the regulation of trade secrets on an international scale.
My paper will explore China’s struggle to establish a positive international reputation in Intellectual Property Law enforcement and how Intellectual Property Law concerns have affected China’s position in international trade and commerce. Moreover, I will also explore how China will protect its own high-‐technology products, patents, trademarks, and trade secrets in the world and how China’s own blossoming technology industry may or may not change how China sees and enforces Intellectual Property Law. The paper will be broken into 4 parts. Section 1: China’s domestic legislation regarding Copyrights, Trademarks, Patents, Trade Secrets, and Unfair Competition. This section will also include a comparison
of the official Chinese legal framework versus the actual process of enforcing IP law in China. Section 2: Notable IPR cases in China involving trade secrets, patent infringement, and trademarks. This section will focus predominantly on trade secrets, patents, and trademark violations, especially in regards to technology transfer to China from the US. It will also cover China’s WTO dispute with the US. Section 3: US trade protectionism due to fear of Chinese exports violating US Patents. This section will include US measures to prevent Chinese takeovers of US companies and US industries and likewise, to prevent Chinese entry into the US domestic market. For instance, US companies will sue Chinese companies based on IP Law infringement in order to prevent them from entering the US domestic market or significantly raise the entry barrier for Chinese companies to enter the US domestic market. Section 4: An analysis on China’s domestic innovation as a way to increase IPR protection within China. Includes an analysis on Qingdao’s Rubber Valley, Shanghai’s Free trade zone, and other local “technology and innovation” centers around China.
Section 1: Chinese IP Laws and Enforcement.
The international opinion of China’s lax enforcement of IP law has caused China a number of issues regarding international trade and technology transfer. Negative perceptions of China’s IP Law has caused the US, for instance, to place a number of export limitations on Chinese goods coming to the US, for fear that the Chinese products violate US patents. Fear of trade secret and patent violation has also prevented the US from exporting certain sensitive technologies to China such as satellites and specialized military weapons. This section will analyze China’s IP Legal framework regarding patents, trade secrets, and trademark. According to many foreign attorneys in China, the Chinese civil code is not the problem; rather, it is the enforcement of the law that is inadequate. This section will define the Chinese legal framework—both on a domestic level and on an international level. Chapter 1. Chinese National Legal Framework: Patent, Trademark, Copyright, and Trade Secret Laws
The legal framework for protecting intellectual property in the PRC is built on three national laws passed by the National People's Congress: the Patent Law, the Trademark Law and the Copyright Law. Numerous regulations, rules, measures and policies have been made by the NPC Standing Committee, the State Council and
various ministries, bureau and commissions. The circulars, opinions and notices of the Supreme People's Court also form part of the legal framework. A. Chinese Patent Law
China has both a statutory law and a formal regulation regarding Patents. It’s statutory law is titled “Patent Law of the PRC” or中华人民共和国专利法 .The Patent Law was adopted on March 12, 1984, and came into effect on April 1, 1985. China’s Patent law has been amended three times. The previous two amendments in 1992 and 2000, respectively, focused on importing advanced technologies and intensifying intellectual property protection for foreign investors. These amended protections include a broadening of available patents in chemicals, pharmaceutical products, and food and beverages flavorings. It also extended the length of patent protection to 20 years. (Hong Xue 56) The third revision that was approved by China’s top legislature on December 29, 2008, was concentrated on enhancing the capability of independent innovation and building an innovative country (Hong Xue 56).
China follows a “first to file” rule which is consistent with the US and certain European countries. Since China is a signatory of the Patent Cooperation Treaty (PCT), the State Intellectual Property Office (SIPO) will conduct an international patent search and preliminary examination of patent applications. Any foreigner, without the assistance of a Chinese office, can prepare the paperwork for filing but the filing of the patent paperwork must be done through an authorized patent agent. Patents are filed in Beijing at SIPO. The Beijing office receives all of the filings and the local offices handle the administrative enforcement of the patents.1
China’s Patent Law has 8 chapters including
Chapter 1: General Provisions 第一章 总则 Chapter 2: Requirements for Grant of Patent Right第二章 授予专利权的条件 Chapter 3: Application for Patent第三章 专利的申请 Chapter 4: Examination and Approval of Application for Patent第四章 专利申请的审查和批准 Chapter 5: Duration, Cessation and Invalidation of Patent Right第五章 专利权的期限、终止和无效 Chapter 6: Compulsory License for Exploitation of Patent Right第六章 专利实施的强制许可 Chapter 7: Protection of Patent Right第七章 专利权的保护 Chapter 8: Supplementary Provisions第八章 附则
Article 60 of Chapter 7 “Protection of Patent” states:
1 China IPR Toolkit, supra note 1
Article 60. Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent right of the patentee, it shall be settled through consultation by the parties. Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested party may institute legal proceedings in the people's court, or request the administrative authority for patent affairs to handle the matter. When the administrative authority for patent affairs handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately. If the infringer is not satisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, institutes legal proceedings in the people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If, within the said time limit, such proceedings are not instituted and the order is not complied with, the administrative authority for patent affairs may approach the people's court for compulsory execution. The said authority handling the matter may, upon the request of the parties, mediate in the amount of compensation for the damage caused by the infringement of the patent right. If the mediation fails, the parties may institute legal proceedings in the people's court in accordance with the Civil Procedure Law of the People's Republic of China.
Article 60 of Chapter 7 of the Chinese Patent Law describes a long administrative process in dealing with Patent violations via mediation before entering legal proceedings in the People’s Court. The first step is “consultation by the parties” which means mediation between the two disagreeing parties. The second step is requesting “the administrative authority” to help with mediation, halting the infringing act, and even mediating an amount of compensation for the damages caused by the infringement of the patent. If the patent owner is unsatisfied with the administrative order, the third step is to institute legal proceedings in the People’s Court within 15 days of the date of receipt of notification of the order.
All court proceedings must be in accordance with the Administrative Procedure Law. It is only within the Chinese judicial court system that damages can be officially awarded; otherwise, it is up to the administration authority (i.e. the police) to sort out the issue via “mediation.” Unfortunately, the court system can be very costly in time and in money so many people opt to resolve IP issues through the administration route rather than through the judicial court system. As one attorney, John Tang, explained, it is up to each company or individual to perform a cost-‐benefit analysis of the situation. Often times, the monetary loss due to infringement is much less than pursuing the issue within a Chinese court. B. Trademark law The Trademark Law of the People's Republic of China (中 人民共和国商 法) sets out general guidelines on administration of trademarks, protection of trademark owners' exclusive rights and maintenance of quality of products or services bearing the registered trademarks, "with a view to protecting consumer interests and to promoting the development of the socialist commodity economy."
Adhering to Article 4 of the Paris Convention, the Chinese government passed the Provisional Regulations Governing Application for Priority Registration of Trademarks in China to grant the right of priority to trademark applications submitted in PRC by the nationals of the Paris Convention member countries.
C. Copyright law Copyright law in China is mainly governed by the Copyright Law of the PRC (
中华人民共和国著作权法) and the Implementing Rules for the Copyright Law of the PRC (著作权法实施条例), the Copyright Law of the PRC adopted and promulgated in 1990 and the "Implementing Rules" adopted in 1991 and revised in 2002. In most cases the copyright term is the life of the author plus 50 years, but for cinematographic and photographic works and works created by a company or organization the term is 50 years after first publication.
To implement the Berne Convention and the Universal Copyright Convention, as well as bilateral copyright treaties signed between the PRC and other foreign countries, the PRC government passed the Regulations on Implementation of International Copyright Treaties (1992). These have given foreign copyright holders protection for their rights and interests in the PRC.
Before the PRC acceded to the Berne Convention, computer software was not treated as a kind of literary work under the Copyright Law. In May 1991, the State Council passed the Computer Software Protection Rules. Based upon these rules, the Measures for Computer Software Copyright Registration were formulated by the then Ministry of Engineering Electronics Industries. These regulations provide a set of rules covering the definitions of various terms and the registration, examination and approval of computer software programs in the PRC. At the moment both the Berne Convention and these two domestic computer regulations are co-‐effective. However, in the event of any inconsistencies, the Berne Convention prevails.
The Berne Convention does not require copyright registration copyright registration, and thus protection in the PRC technically doesn't require registration. However, registering copyrights for literary works can avoid, or at least simplify, ownership disputes. Copyright registration cost is 300 RMB. On the downside, the copyright registration process requires the registrant to disclose detailed information, including software source code, which companies might be reluctant to share.
D. Trade Secret Protection in China Unlike the United States, which has a unified trade secrets law (the Uniform
Trade Secrets Act, or UTSA), China’s rules defining and regulating trade secrets are scattered among a series of laws and regulations. The most important of these is the PRC Anti-‐Unfair Competition Law (AUCL), which was released in 1993. The AUCL formally defines trade secrets in Article 10 as “technical and business information that is unknown to the public, which can bring economic value to the rights holder that has applicability, and for which the rights holder take measures to protect their confidentiality.”
The law defines illegal behaviors related to trade secrets, including direct acquisition of trade secrets via theft, inducement, coercion, use of those illegally obtained trade secrets, or other illegal means. This definition also covers use or sharing of trade secrets by third parties not authorized by the owner. A third party is liable for trade secret misappropriation under the AUCL, when the third party knows or should have known that a given trade secret that it obtains, uses, or discloses has been misappropriated.
Trade secrets are defined as confidential technical or business information that are not known to the public and have economic benefits for the rights holder. The legal definition of trade secrets in most jurisdictions is written to cover a wide variety of possible information that may be important building blocks of a company’s current and future competitiveness and thus worthy of protection. Examples include, but are not limited to, formulas, blueprints, product designs, manufacturing processes, customer lists, sales strategies, and management techniques.
In January 2007, the Supreme People’s Court released the Interpretation on Certain Issues Related to the Application of Law in Trials of Civil Cases Involving Unfair Competition, which addressed additional questions related to trade secret enforcement. This judicial interpretation clarifies how courts should define key terms in the AUCL’s definition of trade secrets, and states that some controversial types of information, such as customer lists, are eligible for protection as trade secrets in China. The interpretation also lays out the rules governing civil trade secrets cases in China, placing the burden of proof in these cases on the plaintiff. To be successful, the plaintiff must prove that the infringed information meets the definition of a trade secret; that the defendant is using information that is substantially similar to the trade secret; and that that information was obtained illegally by the defendant. The plaintiff must provide clear evidence of when and how the information was illegally obtained—a difficult evidentiary challenge. Other sections of the interpretation describe the rules for determining damages and granting permanent injunctions as remedies for trade secret misappropriation.2
A third document, the State Administration of Industry and Commerce’s Provisions Regarding the Prohibition of Trade Secret Infringement, describes administrative procedures for handling trade secrets cases. Additional aspects of trade secret protection and management are covered in other laws and regulations, including the Contract Law (technology licenses and trade secret protection in contract negotiations), the Labor Contract Law (confidentiality-‐related agreements), the Labor Law (liability for violating confidentiality-‐related agreements), the Company Law (trade secrets obligations for senior management), and the Criminal Law (criminal thresholds for trade secrets cases).
2 http://www.chinabusinessreview.com/trade-‐secret-‐enforcement-‐in-‐china-‐options-‐and-‐obstacles/
While there has been some discussion among legal professionals about the benefits of a unified trade secrets law— and some work was done to draft a trade secrets law in the mid 1990s—there has been no indication to date that Chinese authorities will draft such a law. Nor is there any indication that the Chinese government is actively working to revise the AUCL or other existing trade secrets-‐related regulations.
E. Other Laws that Deal with Chinese IPR: Unfair Competition Laws Apart from major legislation on trademarks, copyright and patents, a few
other laws and regulations have been passed to deal with intellectual property related issues. In 1986, the General Principles of Civil Law was adopted to protect the lawful civil rights and interests of citizens and legal persons, and to correctly regulate civil relations. Articles 94-‐97 of the General Principles of Civil Law deal with intellectual property rights of Chinese citizens and legal persons.
In the 1990s many more pieces of legislation were passed to perfect the intellectual property protection system. These include the Regulations on Customs Protection of Intellectual Property Rights (1995) and the Law Against Unfair Competition of the PRC (1993). The latter prohibited the passing off of registered trademarks, infringing trade secrets, the illegal use of well-‐known goods or names of other people, as well as other misleading and deceptive conduct.
According to Article 2 of the Anti-‐Unfair Competition Law of 1993 of the PRC , unfair competition acts, “in this Law, means activities made by business operators who damage the other’s legal rights and interests, disturb the order of social economy and violate the provisions of this Law.” This is the legal standard for judging any act of unfair competition in China. (Kariyawasam 108) An act of unfair competition is defined as followed: 1. It occurs in the act of business or economy competition. Article 2 of the Anti-‐Unfair Competition Law of the PRC (AUCL) defines the subjects of unfair competition as “business operators”, which include legal persons, other organizations or individuals. This provision aims to distinguish unfair competition from civil torts. For example, the act of infringing the reputation of an enterprise is deemed as a tort if there is no competitive relationship between the infringer and infringed. A similar act would be classed as unfair competition only when it aims to defame or crowd out other competitors. (Kariyawasam 108) 2. All business operators aim to compete. Stealing Trademarks, business secrets, and defaming competitors all aim to compete and would fall foul of the AUCL 3. All market players need to abide by the principles of voluntariness, equality, impartiality, honesty, and good faith and respect public commercial ethics in their business transactions. Acts against these are considered unfair competition
4. An act of unfair competition disturbs the social and economic order. Unfair competition aims to crowd out competitors, and it will damage the interest of other competitors and customers, impede and destroy the normal market competitive order. The purpose of anti-‐unfair competition law is to encourage and protect fair competition, prohibit unfair competition, protect the legal rights and interest of business operators and customers, and safeguard and promote the healthy development of the market economy (Kariyawasam 109) Chapter 2: Laws on Paper vs. Reality of Enforcement.
A. Chinese IP law enforcement system
The formal state legislation regarding IPR is much different than the actual enforcement of those laws. This section will detail the practical methods business proprietors must undertake in order to defend their intellectual property rights.
Civil enforcement of IPR in China is a two-‐track system. The first is the administrative track, whereby an IPR holder enlists the aid of a local government agency office. The second is the judicial track, whereby complaints are filed through the court system. Chinese nationals usually use the administrative track to solve IP disputes, while foreign corporations and foreign nationals use the court system because the courts have the authority to award monetary damages.
Chinese citizens usually solve IP disputes through the administrative track, whereby they enlist the help of the local government agencies to help investigate and make a judgment on their claim. The local government officials can help stop the infringing practices but do not have the authority to award monetary damages. If the IPR holder is not satisfied with the outcome, he or she can file a formal complaint through the court system. The court system, while more formal than the administrative process, can be very expensive and take many years to process. The time to trial in a Chinese court is usually less than a year from the filing of the complaint. (The conventional time to trial in the United States is at least two years.) However, in China, a court case for patent infringement is usually delayed to await the result of an invalidity determination, which is decided by the State Intellectual Property Office (SIPO), not the courts, and usually takes one to two years. The upside of using the court system is that monetary damages may be awarded to the winning parties and there is a chance to appeal the decision if the outcome is unsatisfactory. This is why most foreign companies choose to use the court system to prosecute IP infringement.
There is no discovery procedure, as there is in the United States, whereby revealing documents are produced, and development, sales, and profit information are revealed to the lawyers for the opposing party. Therefore, actual damages for infringement are difficult to determine given the lack of information on sales numbers and profits. Statutory damages are adopted in most cases. Under the current patent and trademark statutes, the maximum amount is ¥1 million ($158,000). Because this amount is relatively insignificant and only reached in exceptional cases, IPR owners do not typically litigate in China for the purpose of recovering significant damages. Instead, they do so to secure a court injunction against further infringement.
Unlike the US, where courts are independent of the government; Chinese courts are intertwined with the government. Local court appointments are made by the local government administration, which is dependent on local companies for employment and tax income. These relationships tie local businesses to the courts. In the United States, it is considered inappropriate for a litigant or a prospective litigant to get to know the judge to improve their likelihood of success in court. In China, however, conflict of interest is traditionally not a concern for Chinese officials. It seems that one cannot win in a Chinese court unless that person has ample connections with the local government and/or the local community of businesses.
B. Cost-‐benefit Analysis in doing business in China
In an interview with American attorney, John Tang, the Managing Partner of Law Firm Brennan Manna & Diamond LLC, further confirmed the importance of working with local law enforcement to solve intellectual property law infringement cases. Tang, who works with mostly US small and medium sized companies looking to develop and expand their brand in the Chinese market, says that foreign companies must decide whether taking their Chinese infringers to court is a wise financial decision, as the costs often outweigh the benefit.
“Many times small and medium sized foreign enterprises will conduct a cost/benefit analysis when deciding if to pursue legal actions against infringers. We often use other methods of negotiations to sort out their infringement issues.” (Tang Interview 1/12/2015)
Tang could not officially comment whether his law firm had established relationships with the local police, but said that the local officials could assist in getting the infringing behavior to stop, but could not award damages to the victim as a court could.
Tang said: “In the case of a large company with access to capital, we advise
them to sue only if the infringing behavior seriously affects their market share. Otherwise, the time and money it would cost to go to court and wait for a ruling is
often not the worth the effort. Even if the court decides in their favor, another infringer will likely pop up in another place and time. It is best that small and medium sized enterprises save their money and focus on their business expansion rather than fight their infringers in court.”
One case in which the client performed a cost-‐benefit analysis of whether to pursue legal action involves a foreign licensor with a Chinese licensee. This case involved a new music-‐based technology used for learning to play the piano. This particular device was created by a famous pianist from the UK, who had set up his own company and was licensing his product and his trademark to a Chinese company to franchise and distribute for 2 years. After the Chinese company used the namesake and image of this famous UK piano player to advertise their product for 2 years, they terminated their contract with him, saying that his product was faulty, but then continued making and selling his product on their own without giving him the property royalties. The Chinese company infringed his patented technology, copyrighted work, namesake, and then canceled their license with him so that they did not have to pay him. However, rather the UK Pianist entrepreneur did not have enough money to proceed with legal fees so he gave up pursuing legal action.
Yanping Wang, Shanghai Partner of Detroit-‐based law firm, Miller Canfield LLC, reinforced the importance of trying to settle IP cases out of court before attempting to file an official suit. Unlike Tang, who aids small and medium sized enterprises and insists that close relationships with local authorities are “extremely important,” Ms. Wang, who aids large foreign enterprises, believes that it is not as important for high-‐level foreign companies to have connections with the police. “Chinese authorities will help them [foreign entities] in order to save face and set a positive relationship reputation for China in the international community.” (Yanping Wang Interview 2/9/2015)
C. Trademark Pirate Case Studies Before the Chinese Trademark Law revision of 2014, several “Trademark Pirates” took advantage of the Chinese first-‐to-‐file trademark system, which left a loophole for pirates to file an application of well-‐known trademarks that were already in use abroad but not registered in China. After successfully registering the foreign trademark in China, the trademark pirates would then attempt to sell that same company its own trademark back in case that company ever wanted to enter the Chinese domestic market. Ms. Yanping Wang of Miller Canfield was careful not to mention any specific names of their clients, but did talk about several trademark pirate cases that they were involved with.
One case involved a famous US cookware brand named after a celebrity, which was targeted by a trademark pirate. This particular US cooking brand company never registered their name in China but was already manufacturing products in China bearing that mark. The trademark pirate, who was the rightful “owner” of that mark in China, called the Customs Bureau and asked them to detain the company’s goods from being shipped overseas, basically holding that company’s goods hostage so that they could extort them. The pirate then allegedly told Miller Canfield’s client that if they wanted their products released from customs, they would have to pay 1.5 million USD. Yanping Wang said “Unfortunately, the trademark pirates are the legal owner of the mark under Chinese law because they were the first to file. It is this loophole that allows trademark pirates to take advantage of the Chinese legal system against the interest of the actual business proprietor.”
There was some speculation that the trademark pirate and the customs official were working together or had some kind of agreement. Once an individual buys or files a trademark, it goes on record at the Customs Office. The owner of the trademark can pay the customs officer to notify them when an infringing product goes through, and, for a fee, the Customs officer will hold the so-‐called “infringing” products there. The bounds or legal fee is around 25,000 RMB. This makes it somewhat easy for trademark pirates to have the customs officer working in their favor. Ms. Wang gave a thorough account of the step-‐by-‐step process in how Miller Canfield handled this situation: Process in dealing with the trademark theft case: 1. First, they tried to negotiate with the Pirate as much as possible to settle the matter out of court. However, the Trademark Pirate, who was the technical owner of the trademark, was bent on extorting the client for a large sum of money. 2. Miller Canfield then went to customs to plea their case, however the customs officer urged them to settle with the pirate. There is speculation that the customs officer was working with the pirate since it was beyond his scope of authority to tell MC’s client to settle with the pirate. 3. Meanwhile, Miller Canfield appealed the case to General Customs and asked them to issue a special ruling allowing the items to pass through since it belongs to the US company not the pirate. The General Customs office agreed initially but then retracted their consent. 4. MC tries to talk to US Senators to apply political pressure but to no avail. 5. Fortunately for the client, there was an error at the customs office and the shipments were accidentally released and allowed to ship across the open seas.
Trademark pirating had become so common in China that even local law firms had begun assisting trademark pirates in searching for available trademarks and helping them file applications in hopes of getting a commission from the extorted profit. Chinese law firms even got to the point where they would call and
provoke foreign companies by notifying them that their trademark had been bought in China to try to negotiate a “trademark ransom” with them.
D. Trademark Law Revision
Fortunately, however, the most recent Chinese Trademark Law revision that
came into effect on May 1, 2014, now specifically states under Article 15: “trademarks that are registered by an agent who registers a trademark of a person he represents without authorization from them shall be rejected.” This prevents agents, including corrupt Chinese attorneys, from registering another person’s trademark in the hopes of extorting that person or company. Also, the new revision clearly states that people with “business relationships and contracts with people who have an unregistered trademark in use will have their trademark registration rejected.” This prevents business partners from cheating on one another by registering a mark without the other partner knowing. One example of a previous incident of this is Miller Canfield’s client in 2008, which involved a US product supplier who was involved with purchasing products from a Chinese company. The owner of this particular Chinese company was a female politician in China with high ranking. In bad faith, she registered the US company’s trademark within China and then refused to return it. The situation remains unresolved and the US company can no longer legally use their own mark within China.
Article 15 Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use. Where Trademark applied for identical goods or similar goods, identical with or similar to the other people’s practical used but unregistered trademark, and the applicant has contract, business contact or any other relationship out of preceding clause with the other people and know the exits of the other people’s trademark, the opposition is raised by the other people, the trademark shall be rejected for registration
The new revision now also protects well-‐known trademarks that are in use abroad but not registered in China. Under Article 13, an owner of a trademark can “apply for the protection of well-‐known trademark” and “trademarks that are an imitation or a translation of another person’s trademark not registered in China, will be rejected for registration and prohibited from use.” 3
Article 13 Those trademarks well known by the relevant public, when the owner thinks his right is infringed, in accordance with this Law, he can apply for the protection of a well-known trademark. Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person's trademark not registered in China and likely to cause confusion; it shall be
3 http://english.cnipr.com/iplaws/201311/t20131104_179171.html
rejected for registration and prohibited from use. Where a trademark in respect of which the application for registration is filed for use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the public and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use.
There is a clause in the trademark law that says that the trademark must be in use, however, this also applies to online businesses as well, meaning that pirates can offer their products on an online “shop” on Taobao or JD.com or any other online retailer in order to get around this requirement.
Section 2: Notable IPR cases in Mainland China Chapter 1: Chinese Patent, Trademark, Copyright, and Trade Secret Cases Overview
A. Patent Cases
In 2006, the Chinese subsidiary of the French company Schneider Electric SA was sued by the Chinese company, Chint Group Corp., for patent infringement in the Intermediate Court located in Chint’s home city. Chint claimed that Schneider Electric had infringed on Chint’s utility model patent relating to circuit breakers. In its defense, Schneider filed a patent invalidation petition with SIPO. In April 2007, SIPO affirmed the validity of the Chint utility model patent. The Intermediate Court then moved forward with the infringement case and insisted that Schneider produce certain tax information to determine the company’s sales and profits on the alleged infringing products. The infringement trial was held, and in September 2007 the court found Schneider was infringing China’s patent. The court issued an injunction against Schneider and awarded $49.2 million in damages to Chint. While on appeal, Schneider and Chint settled.
B. Trademark Cases
Two similar trademark cases are notable for their different outcomes. The first concerns Yi Jianlian, a famous basketball star in China. A Chinese sports products company registered the trademark “Yi Jianlian” even though there was no business relationship between Yi and the company. The PRC Trademark Law says that no trademark shall prejudice another person’s existing prior rights in a trade name or the right to exploit their own famous name. Yi filed a cancellation action with State Administration for Industry and Commerce (SAIC) and provided
substantial evidence to establish his popularity in China before the filing date of the trademark. On that basis, SAIC ruled that Yi owned name rights, and canceled the company’s trademark.
However, when former National Basketball Association superstar Michael Jordan took a similar matter to court in China, he lost. In 1998 and 1999, Qiaodan Sports, a Chinese maker of sports products, filed trademark applications for “qiaodan,” which is widely recognized in China as the translation for “Jordan.” Qiaodan Sports used “qiaodan” as its products trademark. A market survey conducted in Shanghai showed that 90 percent of the 400 Chinese citizens polled believed “qiaodan” was Jordan’s brand. Jordan sued Qiaodan Sports for name right infringement in the People’s Court of Beijing. Despite the undeniable fact that Jordan is world-‐renowned, the court held that “Jordan” is a common surname in the United States and therefore not sufficiently unique to create exclusive recognition for Jordan to own the name right to “qiaodan.”Jordan’s lawyers have re-‐filed their name right infringement case, now in a different court, in Shanghai.
C. Copyrights
Copyright infringement is the most notorious of China’s IPR issues. Private party enforcement of copyright protections has not been effective, either because favorable judgments have not been forthcoming, or because infringers keep eluding punishment. The United States and other countries even brought a World Trade Organization dispute over this matter in 2007. It seems that foreign business copyright holders have only achieved significant enforcement results when working in conjunction with Chinese law enforcement agencies as part of Chinese trade relations programs.
D. Trade Secret
Domestic Trade Secret Cases: Ceramics Institute of Guangdong Fotao Group, Inc. v. Jinchang Ceramics Gong Bang Factory
This trade secret case involves a dispute over a production technique called ‘Cold Isostatic Press (CIP) Technique for the Production of Nanocomposite Ceramic Rods’, which the courts referred to as ‘CIP Technique’. The technique was pioneered and perfected by the Fotao Institute, and, after an evaluation by the Guangdong Science and Technology Commission, was deemed a “national technology secret” from 29 December 1987 with a term protection of 15 years. 4 In 1992, it came to the knowledge of Fotao Institiute that Jinchang Factory made use of basically the same
4 http://www.pkulaw.cn/fulltext_form.aspx?Gid=117507295&EncodingName=
technology, machinery, and equipment, as the plaintiff’s factory, to produce rods. The reason was that the defendant had hired 2 workers who had been formerly employed by Fotao Institute, Ou Yongchao and Ou Guoxiang, who had then revealed Fotao’s technology secrets to the defendant. The plaintiff therefore asked the court to order that Jinchang immediately stop the infringing act, compensate the plaintiff for the economic loss suffered, and make a public apology. (Lin 238)
The court unanimously concluded that the plaintiff’s (Fotao) technique was indeed a trade secret as well as a national secret. It also concluded that the defendant (Jinchang) had stolen the trade secret of the plaintiff in an unfair way and had infringed on the rights of the plaintiff. According to the judgment: “Jinchang Factory’s infringement of Fotao Institute’s know-‐how constituted unfair competition, according to Article 10 of the Unfair Competition Law of the PRC. According to Article 20 of the Unfair Competition Law and Article 118 of the General Principles of the Civil Law, Jinchang Factory would immediately need to stop the infringement, respond in damages, make apologies, and bear the legal cost of the case (Lin 255). Jinchang Factory was made to compensate the Fotao Institute with RMB 264,019 for its losses in addition to bearing an additional cost of RMB 30,530 for the acceptance fees and attachment fees, a total of RMB 294,549. Jinchang Factory also had to cease using the “cold wait and static pressed fine ceramic roller” technique as well as make a public apology to Fotao Institute in the newspaper (Lin 256).
US-‐China Trade Secret cases
United States v. Liew Court Name: United States District Court for the Northern District of California Man sentenced for theft of Trade Secrets from DuPont
Walter Liew was sentenced to 15 years in prison, and fined $28 million following his conviction under the Economic Espionage Act. The conviction arose from the theft of trade secrets from DuPont, particularly information and documents pertaining to the production process of a white pigment, titanium dioxide (TiO2). The pigment is what DuPont uses to achieve its whitest whites in everything from cars to paper.
Judge White, writing in the Northern District of California on a post-‐conviction motion for acquittal, explained that the evidence demonstrating the intent to injure Dupont, and intent to benefit a foreign government was sufficient for a rational juror to find Liew guilty. It was also noted that the money was tracked to various accounts in Singapore and China, but could not be recovered.
United States v. Chung Court Name: United States Court of Appeals for the Ninth Circuit 9th Circuit: No Competitors Needed for Trade Secrets to Exist Under the EEA
United States v. Chung, 659 F.3d 815, 826 (9th Cir. 2011) Docket No. 10-‐50074 Federal Court of Appeals for the 9th Circuit Decided: September 26, 2011, Judge Susan P. Graber
In a 2011 opinion, the Court of Appeals for the Ninth Circuit affirmed the first trial court conviction under the Economic Espionage Act. Notably, the appellate court in United States v. Dongfan Chung addressed the independent economic value requirement under 18 U.S.C §1839(3)(B) as either actual or potential. In line with the statutory language, the Court asserted that the owner of secret information did not need to have actual competitors in order to rightfully protect its economic value.
In US v. Chung, the defendant Dongfan “Greg” Chung, a former engineer for the US-‐contractor Boeing, was found in possession of over 300,000 Boeing documents, including six documents containing Boeing trade secrets. On appeal of his conviction, Chun argued insufficient evidence as to the existence of any Boeing trade secrets within the documents he possessed. The court looked specifically at four Boeing documents relating to a NASA space-‐shuttle antenna. Judge Graber found that Boeing maintained the secrecy of the particular Boeing information and enacted reasonable protective measures to maintain secrecy. Most notably, the Court endeavored in an extensive analysis of he economic value required for such information to be trade secrets. While the EEA’s definition of trade secret is grounded upon the standard outlined in the Uniform Trade Secrets Act (UTSA), the text of §1839(3)(B) further defines the economic value of trade secret information as either actual or potential, and does not mention the existence of competitors.
The court reasons that such information “could assist a competitor in understanding how Boeing approaches problem-‐solving and in figuring out how best to bid on a similar project in the future, for example, by underbidding Boeing on tasks at which Boeing appears least efficient.” Thus the Court held Boeing’s secret information independently valuable not for Boeing’s potential use, but for use of such information by any potential Boeing competitor. Thus the Ninth Circuit held that under the EEA, companies do not need actual competitors in order to derive economic value from maintaining the secrecy of certain information.5
Chapter 2: Efforts to Improve the Chinese Court System
Amidst international and domestic criticism, China is seeking to reform and improve its legal system pertaining to Intellectual Property Rights Protection. Such efforts include establishing three special IPR courts in Shanghai, Guangdong, and
5 http://tsi.brooklaw.edu/category/legal-‐basis-‐trade-‐secret-‐claims/economic-‐espionage-‐act
Beijing as well as appointing a judge who with a specialty in Intellectual Property Law to the Supreme People’s Court.
A. IPR Tribunals and 3 Special IP Courts in Beijing, Shanghai, and Guangdong
Since the very first IP tribunal was established in a Beijing court in 1993, IP tribunals have been established at the Supreme People’s Court, 32 high people’s courts, more than 400 intermediate people’s courts and more than 100 designated basic people’s courts throughout China. There are currently about 3,000 specialized IP judges in China.
However, in the Chinese court system, IP civil cases, such as infringement cases, are heard in IP tribunals; IP administrative cases, such as appeals against the Patent Re-‐examination Board’s decisions, are heard in administrative tribunals. IP criminal cases are heard in criminal tribunals. Hence there lacks a consistency in the IP court system due to the different IP cases being tried in 3 different types of courts.
Currently, seven high people’s courts, 74 intermediate people’s courts and 80 basic people’s courts have been running a pilot program that brings together judges from all three tribunals in their respective courts to form a collegiate bench in the IP tribunal for an IP civil case that involves civil or criminal action.
In August of 2014, the Supreme People's Court (SPC), China’s top legislature, selected Beijing, Shanghai and Guangdong as the first places to establish these specialized IPR courts. Under a judicial interpretation issued by the SPC, the three new courts are to handle civil and administrative disputes involving intellectual property, especially technical disputes. 25 judges were appointed to the IPR court in Beijing, which is conveniently located in the Haidian district where a number of technology giants and colleges will stand to benefit from its establishment.
The court in Guangdong will be based in Guangzhou, the provincial capital. Intermediate people's courts, which heard technical intellectual property rights cases previously, will no longer handle related disputes after the three new courts start work.
Although these 3 specialized IPR courts are meant to streamline and better coordinate the IPR court prosecution system, there are still a number of issues. For one, there is a varied level of expertise across different courts regarding patents, integrated circuit layout designs, new plant varieties, and software. Inconsistent standards are being adopted in different courts, there is evidence of local protectionism in some courts, and there are multiple rounds of litigation.
According to the Standing Committee of the National People’s Congress’s resolution, the specialized IP courts have jurisdiction over the first instance of IP civil cases and the first instance of IP administrative cases regarding patents, new plant varieties and integrated circuit layout designs, as well as technical knowhow.
Specifically, the specialized IP court in Beijing has jurisdiction over the first instance of administrative lawsuits that are appeals against decisions of administrative departments under the State Council, such as the State Intellectual Property Office and the Patent Re-‐examination Board, regarding the grant or validity of IP rights. The three specialized IP courts have territorial jurisdiction across regions in China, and in the first three years after their establishment this cross-‐region territorial jurisdiction may first be achieved in the respective province or municipality under the central government where a specialized IP court is located.
The specialized IP courts also hear appeals against decisions in trademark and copyright civil or administrative lawsuits made by the first instance basic people’s court in the municipality where the respective IP court is located.
Appeals against decisions made by specialized IP courts are heard by the high people’s court where the respective specialized IP court is located.
The specialized IP courts will be supervised by the Supreme People’s Court, the high people’s court where the respective specialized IP court is located and also by the Procuratorate, the national agency responsible for prosecution and investigation.
The president of each specialized IP court is appointed by the local People’s Congress where the respective specialized IP court is located. The vice president of the specialized IP court, chiefs of tribunals and adjudicating judges, and members of adjudicating committees will be named by the president of the respective specialized IP court and appointed by the local People’s Congress. The specialized IP court reports to the Standing Committee of the local People’s Congress where the respective specialized IP court is located. The Supreme People’s Court reports on the implementation of the IP courts to the National People’s Congress after three years.
Establishing three specialized IP courts is just a small step towards the reform of the IP litigation system. There is still no national patent appeal court like the Court of Appeals for the Federal Circuit in the US.
Chen Jinchuan, chief judge of the intellectual property tribunal under Beijing High People's Court, said most judges without technical backgrounds have difficulty in handling some professional IPR disputes, such as those related to biology, medicine and chemistry. To resolve this issue, the SPC is recruiting technical assistants for the three courts to help identify technological facts and provide professional advice. The SPC is now preparing a judicial interpretation that will cover the selection of these
technical assistants and their duties, in hopes that it will improve the efficiency of hearing such cases.
Zhang Sihan, a professor at the National Judges College, said it is practical to set up IPR courts in Beijing, Shanghai and Guangdong, "but it is not necessary to establish more in all provinces". Guangdong courts handle about 25 percent of the nation's IPR civil cases every year and the average number of patent disputes in the province annually has reached 3,400. Zhang said the new courts are acting as trailblazers and a decision on extending such courts to other areas will depend on whether these three "pioneers" operate well.6
Chapter 3: Chinese Involvement with International Conventions
In 1980, the PRC became a member of the World Intellectual Property Organization (WIPO). It has patterned its IPR laws on the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-‐Related Aspects of Intellectual Property Rights (TRIPS).
The PRC acceded to the Paris Convention for the Protection of Industrial Property on 14 November 1984 and became an official member on 19 March 1985. The PRC also acceded to the Madrid Agreement for the International Registration of Trademarks in June 1989.
In January 1992, the PRC entered into a Memorandum of Understanding with the United States government to provide copyright protection for all American "works" and for other foreign works. Several bilateral negotiations have been conducted between the two governments. At some point, trade sanctions were threatened by both governments over IPRs issues. At the conclusion of negotiations in 1995, the Sino-‐US Agreement on Intellectual Property Rights was signed. In June 1996, the two governments entered into another agreement protecting American intellectual property in the PRC.
Generally, once the PRC has acceded to an international treaty, the People's Courts can quote the provisions of the treaty directly in deciding an intellectual property infringement case, without reference to a Chinese domestic law by which the treaty provision is incorporated.
A. US China WTO dispute
The US has historically held the view that China is especially lax with regards to its enforcement of Intellectual Property rights. Even before China joined the WTO, the US put tremendous pressure on China in the form of threats of trade sanctions and opposition to its entry to the WTO in order to force China to strengthen its intellectual property protection and enforcement. 6 http://www.chinadaily.com.cn/china/2014-‐11/04/content_18862403.htm
In 2007 the US brought up a case against China at the WTO that said that China’s method of enforcement did not meet the requirements of the Berne convention. In 2009, the WTO upheld the US’s arguments.
On 10 April 2007, the United States requested consultations with China concerning certain measures pertaining to the protection and enforcement of intellectual property rights in China.
The four matters on which the United States requests consultations were:
The thresholds that must be met in order for certain acts of trademark counterfeiting and copyright piracy to be subject to criminal procedures and penalties;
• Goods that infringe intellectual property rights that are confiscated by Chinese customs authorities, in particular the disposal of such goods following removal of their infringing features;
• The scope of coverage of criminal procedures and penalties for unauthorized reproduction or unauthorized distribution of copyrighted works; and
• The denial of copyright and related rights protection and enforcement to creative works of authorship, sound recordings and performances that have not been authorized for publication or distribution within China.
At it’s meeting on 25 September 2007, the Dispute Settlement Body (DSB) established a panel. Argentina, the European Communities, Japan, Mexico and Chinese Taipei reserved their third-‐party rights. Subsequently, Australia, Brazil, Canada, India, Korea, Thailand and Turkey reserved their third-‐party rights. The panel concluded that, to the extent that the Copyright Law and the Customs measures as such are inconsistent with the TRIPS Agreement, they nullify or impair benefits accruing to the United States under that Agreement, and recommended that China bring the Copyright Law and the Customs measures into conformity with its obligations under the TRIPS Agreement. On 29 June 2009, China and the United States informed the DSB that they had agreed that the reasonable period of time for China to implement the DSB recommendations and rulings should be 12 months from the adoption of the report.
Section 3: Chinese Domestic Innovation: A Way To Boost IPR Regime
Chapter 1: Chinese products lack innovation patents, rather they license core tech from other countries ex. Samsung. In 2007, a Chinese newspaper Beijing Youth Daily reported that 99 percent of Chinese Companies did not apply for patents because of the lack of core technology. At the time, Chinese-‐made mobile phones and computers needed to pay 20-‐30 percent of their retail price just for the licensing of patented technologies (Cheung 74). (Beijing Youth Daily, 28 April 2007) Although the situation has improved a lot since then, Chinese-‐made technologies still largely lack their own core technology and continue to license technologies from other foreign companies. One example is China smartphone maker, Xiaomi, who is currently being sued and prevented from entering foreign markets due to its lack of intellectual property, mainly patents.
Ericsson AB has recently sued Xiaomi in India, Xiaomi’s biggest overseas market, saying the smartphone maker hadn’t licensed inventions by Ericsson that enable wireless devices to connect to networks. Ericsson holds essential patents for 2G, 3G and 4G mobile wireless technology, which means any seller of products compliant with those standards must secure licenses.
Xiaomi suspended all India sales to comply with the Dec. 8, 2014 Delhi High Court ruling in Ericsson’s lawsuit. A Xiaomi appeal on Dec. 16, 2014 led to a partial lifting of the ban, for devices using Qualcomm Inc. chips. According to Xiaomi’s India website, the Mi3 and Redmi 1S use Qualcomm chips, while the Redmi Note device uses a MediaTek Inc. processor. Qualcomm has also been quoted saying that Xiaomi has a license agreement for 3G multimode units; however, the details of the agreement cannot be disclosed.
Low research costs in China has helped Xiaomi go from a startup to the world’s No. 3 smartphone vendor within four years of its founding. Virtually all those sales were in China, where weak domestic enforcement of intellectual-‐property rights meant Xiaomi was “much more protected,” Shah said. This lawsuit, however, threatens Xiaomi’s international expansion and puts Xiaomi’s strategy of selling devices for near-‐cost at risk, as it will have to increase its spending on research and licensing to avoid legal battles.
Although Xiaomi is also working to expand its patent technology portfolio globally—filing 600 patent applications in 2013 and another 1,000 applications in 2014, it still is still a very young company and lags behind its competitors. Entering an overseas market with a limited patent portfolio can be a “calculated risk,” since competitors will target those companies for IP law suits to keep them out of the market. Neil
Shah, a Mumbai-‐based research director for devices at Counterpoint Research said: “Patent companies in other countries will now go after Xiaomi in other markets and use the India market as the example.”
“Expansion into countries with strict intellectual property laws, such as the U.S. or Japan, has long been a challenge for most Chinese smartphone brands, including Xiaomi,” said Neil Mawston, executive director of researcher Strategy Analytics.“Xiaomi will find its rapid smartphone growth at home in China is much harder to replicate abroad.”7 For now, Xiaomi will still have to license many of its core technology patents. However, unfortunately from them, many foreign enterprises that own core technologies charge high patent licensing fees to Chinese domestic ICT (Information and Communications and Technology Market) Industry. (Hong Xue 41). Chapter 2: Innovation areas that are funded or supported by the Chinese Government
Chinese domestic IPR will improve as its own domestic innovation grows, as it will have reasons to protect its own IPR from infringement. The Chinese government is eager to develop its own research and further delve into areas such as ‘independent innovation.’ Chinese domestic innovation faces the further threat of intellectual property theft. Competitors in China are becoming more technologically advanced and legally sophisticated, so that IP disputes are already moving away from simple counterfeiting or copying towards more sophisticated methods of infringement. This makes obtaining effective and robust patent rights in China even more important. (Cheung 74) In an interview with Professor Michael Pendleton, the Associate Director of the School of Law at the Chinese University in Hong Kong, he states: “The Chinese government has already revised many IPR laws: patents, copyrights and signed on to many international agreements through bilateral and multilateral means. However, it is like putting on new clothes without really understanding what are the meanings of the legal system and the rules of law. They will take literally what fits and revise. China is gradually developing its own intellectual property and needs a system to protect it. It is about self-‐interest in having laws to protect its own IP.”(Cheung 94) Pendleton has worked with Professor Zheng Chensi who was the previous head of the Intellectual Property Rights Bureau in China.
7 http://www.bloomberg.com/news/articles/2014-12-22/xiaomi-finds-patent-problem-in-chase-of-samsung-apple
Innovation Development projects such as the Shanghai Free Trade Zone, Qingdao’s Rubber Valley, and Shanghai’s Knowledge and Innovation Center (KIC) exemplify the growing trend of Chinese domestic innovation. A. Shanghai Free Trade Zone Shanghai’s Free-‐Trade Zone (Shanghai FTZ or SFTZ), officially China (Shanghai) Pilot Free-‐Trade Zone中国(上海)自由贸易试验区is an example of China’s effort to increase international free trade as well as encourage innovation and the importing of new innovative products. Officially launched on September 29, 2013 with the backing of Chinese Premier Li Keqiang, it is the first free-‐trade zone in Mainland China, covering an area of 29 square kilometres (11 sq mi) and integrating four existing bonded zones in the district of Pudong — Waigaoqiao Free Trade Zone, Waigaoqiao Free Trade Logistics Park, Yangshan Free Trade Port Area and Pudong Airport Comprehensive Free Trade Zone. The intention is for the SFTZ to expand gradually to cover the entire 1,210 square kilometres (470 sq mi) of Pudong.8
The Zone is being used as a testing ground for a number of economic and social reforms. For example, the sale of video game consoles, banned in China since 2000, will be allowed within the zone. While Microsoft had aimed at having its Xbox on the market by late April, 2014, it has now been slated for a release date of September 23, 2014. Consoles and individual games will still be subject to a case-‐by-‐case approval by the Shanghai Municipal Administration of Culture, Radio, Film & TV for manufacture and sales in China.
Although it was initially reported that the zone would also have unrestricted access to the internet (with bans on sites such as Facebook lifted), the official Xinhua News Agency has stated that Internet restrictions would not be lifted.9 Because the four bonded zones of the Free Trade Zone are not technically considered PRC territory for tax purposes, commodities entering the zone are not subject to duty and customs clearance as would otherwise be the case. This has been a boon to the wine industry in China, as it grants importers more flexibility in bringing wine into the country.10 The FTZ features a distinctive mechanism for dispute resolution than exists elsewhere in China. Arbitration in the Zone is governed by a separate set of Arbitration Rules issued by the Shanghai International Arbitration Center (SHIAC). These introduce several reforms favorable to foreign investment in the FTZ, including emergency arbitration, hybrid mediation/arbitration, and lower barriers to summary procedure. Additionally, arbitrators may be chosen from outside of the official roster maintained by SHIAC, provided they satisfy certain qualifying criteria.
8 "Shanghai free-‐trade zone launched". BBC News. September 29, 2013. Retrieved September 30, 2013. 9 "China to lift ban on Facebook – but only within Shanghai free-‐trade zone".South China Morning Post. September 25, 2013. Retrieved October 8, 2013. 10 "China launches pilot free trade zone in Shanghai". Shanghai Daily. September 29, 2013. Retrieved September 30, 2013.
Corporate Establishment
The Zone cancels out a number of financial requirements for setting up a company in China, including the minimum registration capital of RMB 30,000 for limited liability companies, the RMB100,000 minimum for single shareholder companies, and the RMB5 million minimum for joint stock companies. Moreover, under the FTZ's new capital registration system, foreign investors are no longer required to contribute 15-‐percent capital within three months and full capital within two years of the establishment of a foreign invested enterprise (FIE).
Instead, shareholders of companies established in the Zone may agree upon the contribution amount, form, and period of contribution at their own discretion. However, shareholders are still liable for the authenticity and legality of capital contributions and will be held accountable to the company within the limits of their respective subscribed capital or shares.
In addition to these financial reforms, the FTZ also introduces a simplified procedure for foreign investors to establish a company in China. The “one-‐stop application processing platform” unique to the Zone requires that all application materials be submitted to and handled by the Industry and Commerce Authority (AIC) in the Zone. The relevant approval and filing procedures are then conducted via inter-‐departmental circulation, after which the various licenses and certificates (including the business license, enterprise code certificate, and tax registration certificate) are issued to the applicant(s) by the AIC.
This means that applicants may obtain all the necessary documents for company establishment in one place, in contrast with outside the Zone where applicants must run around between different authorities for the issuance of various certificates.[15]
According to the Shanghai Statistics Bureau, close to 10,000 businesses had registered within the FTZ as of June 2014—661 of which were foreign-‐invested enterprises.11
Foreign Exchange As announced by the State Administration of Foreign Exchange (SAFE) Shanghai branch on February 28, 2014, the Free Trade Zone will permit yuan convertibility and unrestricted foreign currency exchange, and a tax-‐free period of 10 years for the businesses in the area as a means to simplify the process of foreign direct investment (FDI) and facilitate the management of capital accounts. Under the new regulations, foreign invested enterprises (FIEs) registered in the FTZ may now make foreign exchange capital account settlements at their own discretion, as opposed to under the previous rules, where settlements were restricted to those deemed to be "actual needs" by SAFE. FIEs in the FTZ may also now open RMB special deposit accounts to hold RMB funds obtained from foreign exchange settlements, which may then be used to make payments for real transactions.
11 "Establishing a Company in the Shanghai FTZ", China Briefing, Shanghai, 12 March 2014.
However, restrictions still apply for using RMB funds for certain types of transactions. Foreign Investment
The Zone introduces a number of reforms designed to create a preferential environment for foreign investment. On September 18, 2013, the State Council of China published a list of 18 service industries to receive more relaxed policies in the zone, including medical services, value-‐added telecommunications, ocean freight & international ship management and banking. Another important feature of the zone is found in its "negative list" approach to foreign investment, which is permitted in all sectors unless explicitly prohibited by the inclusion of a given sector on the Negative List published by the Shanghai Municipal Government. The 16 sectors thus named as restricted or prohibited for foreign investment are organized as follows:
• Agriculture, Forestry Animal Husbandry and Fishery • Mining • Manufacturing • Production and Supply of Power, Gas and Water • Construction • Wholesale and Retail • Transportation, Warehousing and Postal Services • Information Transmission, Computer Services and Software • Finance • Real Estate • Leasing and Commercial Services • Scientific Research and Technical Services • Water Conservancy, Environmental, and Public Facilities Management • Education • Health and Social Industries • Cultural, Sports and Entertainment Industries
The Negative List was updated in July, 2014, further relaxing restrictions on foreign investment in the financial industry, manufacturing, and transportation services.
E-‐Commerce In one of the first measures introduced as part of the Shanghai FTZ, the General Administration of Customs (GAC) launched a cross-‐border E-‐commerce platform, buyeasi.com 跨境通. This was intended to stymie the widespread evasion of customs duty and smuggling that have emerged amidst China's booming e-‐commerce market through online vendors such as Taobao. Products on the new site, which will be monitored by the GAC, are sold by vendors who have conducted
record-‐filing with the customs authorities, thereby avoiding the risk of fake products and lowering product prices through the use of bonded warehouses. 12 Legal Services
The FTZ introduces two main changes to the Chinese legal services industry: firstly, whereas previously foreign lawyers were prohibited from directly participating in China’s legal affairs and foreign law firms were only permitted to set up a branch or a representative office (RO) in China, under the FTZ pilot program, a foreign law firm that has established an RO in the Shanghai FTZ will be allowed to enter into an agreement with a Chinese law firm to mutually dispatch lawyers to the other firm.
Secondly, foreign law firms that have already established ROs in China can now set up joint operations in the Shanghai FTZ with Chinese law firms, whereby they may provide legal services to Chinese and foreign clients based on Chinese and foreign laws in accordance with the rights and obligations stipulated in their agreement.
Logistics, Warehousing, and Transportation
The logistics industry in the FTZ benefits from the presence of Waigaoqiao Port, Yangshan Deepwater Port, and Pudong International Airport, as well as the streamlined customs approval process in the Zone, which halves the time required to bring goods into/out of China. As a result of the rush of companies looking to incorporate in the Zone, industrial property (warehouses) has witnessed soaring rental prices in comparison with elsewhere in Shanghai. Marine Insurance
Insurance companies in the FTZ are able to apply to the Shanghai Institute of Marine Insurance for approval to offer new marine insurance products. This is the first instance of an industry association being granted such powers in China, and is intended to raise the competitiveness of Shanghai's marine insurance industry. Medical
Under legislation issued by the Shanghai Municipal Government, foreign investors may establish wholly foreign-‐owned enterprises (WFOE) in the medical industry in the FTZ. Foreign ownership (up to 70 percent) is also permitted for equity or cooperative joint ventures in the medical industry. Both forms of establishment are subject to certain conditions, such as a minimum total investment of RMB 20 million and a maximum operating period of 20 years.13
By creating a special zone within Mainland Chinese borders where the flow of capital and the establishments of enterprises are facilitated much more easily, the
12 "Shanghai FTZ Launches Cross-‐Border E-‐Commerce Platform", China Briefing, Shanghai, 11 October 2013. 13 Wholly Foreign-Owned Medical Institutions Allowed in Shanghai Free Trade Zone, China Briefing, Shanghai, 2 December 2013.
Shanghai Free Trade Zone is increasing technology trade and innovation by allowing more foreign companies to do business in China with much less hassle.
B. Shanghai Knowledge and Innovation Center (KIC) or the 创制天地 of 杨浦区
The Shanghai Knowledge & Innovation Community, or KIC, is located in Wujiaochang Sub-‐centre in the Yangpu District, which is home to 10 neighbouring major universities and colleges. Covering about 800,000 sq.m. of land, this city-‐core development aims to create an environment that fosters technological innovation and entrepreneurship similar to that of Silicon Valley in the United States and to provide "Live-‐Work-‐Play" accommodation inspired by the Left Bank in Paris. Placing strong emphasis on education, technology, culture, research and business incubation, KIC is a multi-‐function community where people live, study, work and relax. SOM Co., Ltd. (Skidmore, Owings and Merrill, LLP) is master plan consultant of the overall community development.14
This community is a new landmark in Shanghai developed by Hong Kong-based Shui On Group, which also built Xintiandi. The center not only incorporates rich history and cultural resources of Yangpu, but also pulls in new industries like financial technology and cloud computing.
Oracle, IBM, eBao Tech, emcore, EMC, VMware and the Shanghai branch of SVB Financial Group are among the companies that have located in the KIC.
The community is broken down into four areas — KIC Plaza, KIC Village, KIC Venture Park and Jiangwan Sports Center. The KIC Plaza provides office buildings, learning center, exhibition halls, conference facilities, the KIC Village provides comfortable apartments, offices, retail and recreational facilities, the Jiangwan sports center provides multi-‐functional, all-‐weather integrated sports complex
KIC Plaza features office buildings, learning centers, exhibition halls and conference facilities. KIC Village is a residential area with apartments and recreational facilities along with some retail space. Small and medium-sized businesses focusing on innovation make up the core of companies in KIC Venture Park. Jiangwan Sports Center is designed to complement the community’s other features. KIC has been designed to integrate the resources of government, businesses and universities for the benefit of society. The area has also become a magnet of sorts for entrepreneurs, who settle in the area to try new ideas.15
C. Rubber Valley Qingdao Rubber Valley is an example of an industry-‐specific innovation park that aims to
promote sustainable development for the chemical and rubber industry within
14 http://www.shuionland.com/sol/tabid/145/default.aspx 15 http://www.shanghaidaily.com/District/yangpu/Building-‐on-‐innovation-‐and-‐integration/shdaily.shtml
China and become a kind of one-‐stop-‐shop for rubber and chemical related industries to develop, market, and distribute their products within China. Rubber Valley is located in Shibei District, Qingdao, China, with a core planning area of 494 acres. It was founded by China Rubber Industry Association, Qingdao Shibei District Government, Qingdao University of Science & Technology and MESNAC Co., Ltd. and aims to build a “highly integrated industry ecosystem with a combination of government-‐production-‐university-‐research-‐capital and interaction.”16 In Rubber Valley, various enterprises develop an upstream-‐downstream relationship, share resources with one another, and often become the supply or demand side to one another.
There are twelve major industrial platforms that cover all the elements needed in the development of the chemical rubber industry enterprises. There are platforms for scientific research and innovation, Enterprise Incubation, Commodity Trading, Warehouse Logistics, E-‐Commerce, and Communication to name a few. Rubber Valley hopes that the integration of industry resources: human talents, technologies, markets, and capital logistics will cultivate core competitiveness. Some might say it is the Silicon Valley of Rubber and Chemical industries in Mainland China.17 D. Chinese Military Technology Developments
China has also made significant strides in military technology, especially in satellite communications, surveillance systems, and geolocation capabilities. Because this topic is fairly sensitive, most current information on China’s military technology development is top secret and unavailable. However, from the 1997 reports from Khalilzad’s “US and a Rising China,” one can piece together a general picture of China’s development since that time. It is fair to say that since 1997, China’s military technology development has probably grown substantially, however the details of this are still unknown to the public.
Since the 1970, China has successfully flown a variety of satellites including communications, meteorological, and surveillance systems. In addition, China today offers commercial launch services to a variety of customers and may even conduct-‐manned spaceflights in the next few years. (Khalilzad 57) For example, China is developing a new generation of photoreconnaissance satellites, the FSW-‐3 series, which will provide 1-‐meter resolution, and the Chinese National Remote Sensing Center also receives imagery from U.S. LANDSET, French SPOT, Israeli EROS, and Russian remote-‐sensing satellites (Stokes, 1997).
According to Khalilzad, China is well positioned to be part of the emerging era of widespread commercial exploitation of space. With its large economy and foreign-‐exchange reserves and its relatively advanced technological base, China is participating in a number of international space ventures, including the Iridium and
16 http://www.rubbervalley.com/english/ArticleMenu.aspx?class1=2&class2=43 17 http://www.rubbervalley.com/english/ArticleMenu.aspx?class1=2
Globalstar satellite communication systems. China’s financial resources could also make its military a major consumer of “pay-‐for-‐play” commercial remote sensing systems such as Quick Bird, Orbview, EROS, and advanced SPOT, which will come into service in the next few years and offer on-‐demand high –resolution multispectral imagery. So, the Chinese may be able to derive many of the advantages of space exploitation without building or launching a single satellite of their own. (Khalilzad 58) Pay to Play The Chinese may also benefit as something of a free rider on space capabilities developed by other parties. The U.S. GPS and Russian GLONASS systems, for example, appear to be evolving into global geolocation utilities, freely accessible to all comers. China is reportedly already exploiting GPS/GLONASS to improve the accuracy of its ballistic missiles. (Khalilzad 58).
Chapter 3: Chinese acquire US entities in order to gain Patents and Distribution Networks
There is some speculation that Chinese companies are targeting US and European companies for foreign acquisitions. They are specifically buying entities in the US with well-‐known trademarks, patented technologies, and already established distribution channels. Attorney John Tang Tire used the example of rubber companies in China that are searching to acquire US technology start-‐ups who are involved in relevant tire technologies. The reason for this trend is that Chinese companies, especially ones that are at the top of their industry with the majority of the market share, will be flush with capital but will not have their own Research and Development (R&D) departments in which to invest. Several Chinese companies would use their extra capital to invest in real estate, however, as the Chinese real estate market becomes increasingly volatile and unstable, Chinese companies are looking elsewhere to invest. This is the reason Chinese companies are looking to acquire assets and enterprises overseas. They are mainly interested in buying patented technologies that would improve the quality of their own domestic products or gaining access to US distribution channels. These distribution channels can be used to sell their own products within the US market or to gain technologies to bring back to China. Even if those patented technologies were to be stolen or illegally copied and/or used illegally within China, Chinese consumers still value foreign brands over their own domestically made products. Hence, it is still valuable to have proprietary control of a US brand name or enterprise. Moreover, Chinese consumers are willing to pay more for the perceived higher quality of foreign products, even if the Chinese counterpart was offered at a lower price.
Most of the time Chinese companies can do this without much legal restraint, except when concerning sensitive military technologies or technologies that would endanger “national security” such as certain sensitive software, aerospace technologies, and hazardous chemicals. However, the majority of Chinese companies are not looking to buy sensitive military technology that would pose a threat to the US per say, but rather, are looking to develop their own Chinese commercial technologies that are already in common use in US products. For instance, in the rubber industry, Chinese companies will buy US companies and patents to make Chinese tires more durable—a technology that is already in common use in many US tire products. Basically, the Chinese are trying to improve their products’ quality standards to equal that of the US. The Chinese companies achieve this by buying US machinery parts or acquiring the US company that makes the parts. This also applies to the mobile phone industry. A Chinese company could either buy individual mobile phone parts such as the screen and hardware or simply purchase the US company that develops them, making those products their own. To clarify, Chinese companies today are only interested in acquiring US companies that are specifically related to their industry or distribution network. This is mainly to improve the quality of their own Chinese domestic products and to increase their market share and/or distribution network.18 Chinese Takeovers of US Domestic Industries
Despite the recent rise in US protectionist and anti-‐China sentiment, a good number of Chinese companies have successfully taken over US companies in a number of industries. For instance, under the U.S. central bank’s decision, the Industrial and Commercial Bank of China (ICBC), the largest bank in Communist China with assets estimated at some $2.5 trillion, was allowed to become a holding company and acquire the Bank of East Asia in New York. It marked the first time that a Communist Chinese bank (ICBC is more than 70 percent owned by the regime) was permitted to take over an American bank. All 13 branches of the U.S. institution were taken over.
Chinese companies have also begun to take over US entertainment industries. For more than $2.5 billion, the Dalian Wanda Group agreed to purchase U.S.-‐based AMC Entertainment Holdings — one of the world’s top movie-‐theater chains — to create what will become the biggest cinema operator on earth after the merger. 19
18 http://www.economist.com/node/17460954 19 Newman, Alex. "China Buys Hollywood Influence with Takeover of Top U.S. Cinema Chain." China Buys Hollywood Influence with Takeover of Top U.S. Cinema Chain. The New American, Apr.-‐May 2012.
Further success against US protectionism is shown through China’s Shuanghui International Holdings Ltd’s $4.7-‐billion (U.S.) bid to buy Virginia-‐based Smithfield Foods Inc. which aims to boost U.S. pork exports to China amongst domestic meat scares. Shuanghui is offering $34 a share in cash for Smithfield, which grew from a small packing plant in 1936 to become the world’s largest pork producer with 46,000 employees today in the United States. The deal must first obtain approval under applicable U.S. and specified foreign antitrust and anti-‐competition laws, the Committee on Foreign Investment in the United States (CFIUS) and other customary closing conditions, however, if it succeeds, the deal would mark the largest takeover of any U.S. firm by a Chinese company.
Yang Zhijun, the managing director of Shuanghui, stated the mutual benefits as China will gain a new source of meat and the US will gain a new international market. “China and the U.S. are the most important markets. We are No. 1 in China. Smithfield is No. 1 in the U.S.; Together, we can be a global leader in animal protein.” 20
Section 4: US-‐China IP Law and Trade Protectionism Disputes Chapter 1: China Fear and US Policy of Containment U.S. Policy Options
According to the 1997 book called “US and a Rising China,” the US had and has several policy options in its dealings with China: Engagement, Containment, or a mixture of the two—“Congagement.” In this book, the author Khalilzad explores the number of ways the US can perceive and respond to China’s growth: one mindset involves seeing China as a dangerous threat that must be contained for fear that it would surpass the US. The other predominant attitude is to welcome China as a friendly competitor in the world sphere and use their growth to the US’s advantage. Even in today’s world, nearly 20 years after the publishing of “US and a Rising China,” one can still see the US struggle between checking China’s enormous growth by maintaining the US’s existing power over China and the Eastern Asian region, while at the same time continuing to benefit from China’s growth and reaping the benefits of the US-‐China codependent economies. It is interesting to see what the US’s policy towards China was 20 years ago while today The US still to this day benefits from
Web. 07 Sept. 2013. <http://www.thenewamerican.com/economy/markets/item/11537-‐china-‐buys-‐hollywood-‐influence-‐with-‐takeover-‐of-‐top-‐us-‐cinema-‐chain>.
20 Rush, Dominic. "Smithfield Foods Sale to Chinese Firm Gives US Pork Giant Entry to China." The Guardian. Guardian News and Media Limited, 29 May 2013. Web. 8 Sept. 2013. <http://www.theglobeandmail.com/report-‐on-‐business/international-‐business/us-‐business/chinese-‐bid-‐for-‐pork-‐giant-‐smithfield-‐tests-‐us-‐appetite-‐for-‐takeovers/article12219425/>.
China’s growth, but does not want it to surpass it in the realm of political, socio-‐economical, and/or military power. According to Khalilzad (1997): “Engagement: In principle, engagement seeks to maintain and enhance relations with China as much as possible. Economically, it seeks normal trade relations by granting “most favored nation” (MFN) trade status, reducing the number of sensitive goods and technologies covered by export controls, simplifying the export control procedures, allowing Chinese companies to operate relatively freely in the United States, and facilitating Chinese entry into such international economic organizations as the WTO. (Khalilzad 64)” [Take note, this book was written before China had officially entered the WTO. The US at this point of time was hesitant to allow China to enter the WTO. Disallowing it would have severely hindered China’s growth and be considered a form of containment.] Politically, engagement seeks to maximize bilateral ties while keeping any disputes at as low a level as possible. It tries to bring China into the various multilateral arms control regimes dealing with weapons of mass destruction, proliferation, arms trade, etc., and into other international regimes dealing with such issues as human rights. (Khalilzad 64) Militarily, it seeks to increase military-‐military relations of various sorts. This implies the avoidance of conflict with China. The US would also promote China’s participation in regional security organizations such as the ASEAN Regional Forum (ARF). (Khalilzad 64) The US has pursued certain actions to express its displeasure with foreign state behavior of which it disapproves. In the 1990s, the Clinton administration was unwilling to allow China to join the WTO under the favorable terms it demanded and even threatened economic sanctions over some issues, such as the Chinese government’s failure to protect the intellectual property rights of U.S. corporations. In 1999, the Clinton administration prohibited the sale of a communication satellite to a Singapore-‐based company because of its ties to the PLA. (Khalilzad 67) Problems with Engagement Engagement rests on an assumption that continued contact will eventually affect Chinese behavior in positive directions. This is far from certain. In the meantime, it helps China develop economically and technologically, thus creating the base for
future military strength. Thus, should the assumption prove incorrect, engagement will merely have helped China become a more-‐threatening adversary in the future. Even if the Chinese leadership is temporarily willing to abide by the U.S.-‐supported norms of international behavior—to secure the advantages of engagement—there is no guarantee that its acquiescence will continue once China’s comprehensive national power has been enhanced. At that point, China may feel confident of its ability to make its way in the world without economic or other relations with the United States or may believe that its importance in world affairs is now so great that the United States will have no choice but to seek good relations with it. (Khalilzad 69). Khalilzad is expressing the American fear that China will eventually surpass the US and will not be able to “contain” or “control” China’s behavior, rather the US will have to be the one acquiescing to China’s will. Containment The goal of a policy of containment would be to avoid an increase in China’s power relative to that of the United States. This would include efforts to slow down China’s economic growth in general, as this is the fundamental basis for national power, and to prevent an upgrading of its military capabilities in particular. It would also include efforts to limit the expansion of China’s influence beyond its present borders. Under a containment policy, all elements of the U.S.-‐China relationship would be subordinate to the goal of preventing the growth of China’s power. Thus, the United States would work to limit foreign trade and investment in China and in particular prevent the transfer of any technology that might aid China’s military. (Khalilzad 70) The realist international relations theory reads Chinese history to say that China, given its historical tradition of regional dominance and its view of itself as having been victimized by the “West” during a century and a half of “national humiliation,” will seek to become at least a regional hegemon in East Asia and to challenge what it sees as American “hegemony” and the current system of international norms, which it sees as biased in favor of those who created it. (Khalilzad 70) For Khalilzad, the US policy of “Containment” would involve the US trying to undermine and control China’s growth in every possible way, a policy that is neither practical nor feasible as this point. The US recognizes that China has the will and resources to grow and prosper, and, that given its size, it has potential to be a regional “hegemon” in the East Asian region. The US will have to come to terms with the fact that China will eventually (if not already) dominate affairs in the East Asian region. It is up to the US to leverage its own power in the region so as to not completely relinquish control of the region, but also, to recognize and acknowledge the growing importance of China in the political and socio-‐economic playing field of the region. Congagement
This “third way” policy would continue to try to bring China into the current international system while both preparing for a possible Chinese challenge to it and seeking to convince the Chinese leadership that such a challenge would be difficult to prepare and extremely risky to pursue. (Khalilzad 72) Khalilzad’s idea of “Congagement” proposes that the US continue to continue to allow and benefit from China’s growth, but to proceed with caution so that China does not overtake the US in terms of international power. Chapter 2: Section 337 and 517; US Blocks China from Entering US Domestic Market As China has grown into an increasingly powerful nation, the US has become fearful of China’s rise and has begun implementing protectionist trade policies towards China’s international industries, particularly China’s high technology and IT industry. This section will explore the US’s fear of China’s rise as manifested through legal protectionist measures such as Section 516 of the Consolidated and Further Continuing Appropriations Act and USITC Section 337 of the Tariff Act of 1930 which effectively bar Chinese companies from entering the US domestic market in the name of “National Security” and “Intellectual Property Protection.” The US has also used high tariffs against China’s Solar panel industry in order to prevent the Chinese companies from “dumping” their products in the US domestic market. Such measures can be viewed as methods of US protectionism towards China. The US is using any and all legal and trade policy measures including tariffs, homeland security, and unfair trade practice measures to bar Chinese companies from entering into the US domestic market. As China has become more and more powerful, the US has begun to show a negative attitude towards the rise of China, most commonly described as “China Fear” or “Yellow Peril.” Much of this fear is directed towards China’s high technology and IT industry. As the US has shifted from sourcing every day material to high technology from China, the US has become more careful and increasingly fearful of Chinese competition, which is manifested through the US’s protectionist measures against Chinese companies. Cybersecurity, especially, is an excuse for the US to block China’s high technology from entering into the US domestic markets in the name of “homeland security”.21 Section 337 IP Law Protections
21 Jincui, Yu. "Protectionism Shows US Fears of Strengthened Chinese Competition -‐ OP-‐ED -‐ Globaltimes.cn." Protectionism Shows US Fears of Strengthened Chinese Competition -‐ OP-‐ED -‐ Globaltimes.cn. Global Times, 16 May 2013. Web. 07 Sept. 2013. <http://www.globaltimes.cn/content/782183.shtml>.
The US has similarly used Section 337 of the Tariff act of 1930 as another way to bar Chinese high technology from its domestic markets. Section 337 protects US Product’s Intellectual Property rights from infringing foreign imported products and enables US companies to call investigations on foreign companies who have products that infringe the patents, trademarks, and copyrights of their products. Section 337 investigations have been used to probe Chinese high technology and IT companies such as Huawei, ZTE, and most recently, Sany.
The US International Trade Commission (USITC) initiated a Section 337 investigation on July 2013 into Chinese multinational heavy machinery manufacturing company Sany for patent infringement. The probe is grounded on a complaint filed by Manitowoc Cranes in the state of Wisconsin, which accused Sany and its US entity of infringing its patents related to mobile cranes that use variable position counterweight technology to improve operation and use of the cranes. 22
Similarly, on August 20th, 2013, The US International Trade Commission instituted yet another Section 337 probe as it initiated a patent investigation into a Chinese medical device company and its two US entities. Yitai Hu, a partner in the Silicon Valley office of Alston & Bird LLP who litigates intellectual property cases, said that the unusual thing about the ITC is that even "non-‐US companies, as long as they qualify as a complainant, may institute a 337 investigation against its competitors worldwide". This is one of many probes the USITC has launched recently involving Chinese companies. In earlier cases Huawei, ZTE and many other Chinese companies were also under USITC's scrutiny. Many see the 337 investigations as a move that sends out protectionist signals to Chinese businesses in the US market.23
Besides Trade Policy protectionism, the US has also employed tariffs as a way to prevent Chinese products from entering the US market. The U.S. Commerce Department on May 17 imposed levies of between 31 and 250 percent on Chinese producers and exporters of Solar Cell products saying that it found China was dumping their solar cells in the US, or selling them at artificially low prices. The US Commerce Department noted that Chinese solar panel companies often received large subsidies from the Chinese government and therefore could afford to produce and sell solar panels and a much lower cost. While this makes sense, many see this move as an example of US trade protectionism. Sales to the U.S. solar cell and solar panel market were worth $3.1 billion to Chinese producers last year, according to the Commerce Department. Commerce ministry spokesman Shen Danyang said: "Such practices... do not fit with the fact that Chinese enterprises are market economy participants, and highlight the United States' tendency towards trade protectionism. The U.S. ruling is unfair and China is extremely dissatisfied." Tariffs
22 WantChinaTimes.com." WantChinaTimes.com. Xinhua, 12 July 2013. Web. 07 Sept. 2013. <http://www.wantchinatimes.com/news-‐subclass-‐cnt.aspx?id=20130712000113>. 23 U.S. Opens Patent Probe into Chinese Medical Device -‐ People's Daily Online." U.S. Opens Patent Probe into Chinese Medical Device. Ed. Chen Lidan and Gao Yinan. People's Daily Online, 20 Aug. 2013. Web. 07 Sept. 2013. <http://english.people.com.cn/90778/8370518.html>.
as well as trade policies relating to Cyber security and Intellectual property are tools in by which the US implements protectionist policies towards China. 24 Section 516: “National Security” and blocking ZTE In March of 2013, US President Barack Obama signed the Section 516 of the Consolidated and Further Continuing Appropriations Act which requires US agencies like NASA and the Justice and Commerce Departments to seek approval from federal law enforcement officials before importing IT system produced by entities associated with the Chinese government. The bill poses a threat to the future development of these Chinese enterprises in the US and stigmatizes these enterprises by wrongly classifying them as "threatening cyber security." Like the 2012 report accusing Huawei and ZTE of posing security threats and the Pentagon's charges of the Chinese military's cyber espionage, the Section 516 bill is not founded on any solid evidence and presumes China’s guilt.25 The Section 516 Bill not only violates the WTO’s fair trade and nondiscrimination principles, it is also unreasonable to enforce due to the widespread globalization of the IT supply chain. Most US tech companies have most of their components manufactured by foreign firms, and most of these suppliers are in China. This would make it nearly impossible for US agencies to strictly follow Section 516. Furthermore, if China were to reciprocate, and block US technology companies in China, then the future of US companies, and US jobs would be at serious risk. Cyber security has been politicized, because if it were a technical issue, then the market would have obliged the US government to force US agencies to buy Huawei products because they are safer, better priced and have better quality. Cyber security is a weak excuse for the US to block Chinese high technology products from their markets, Tariffs on Chinese Solar Panel Industry Due to Unfair Competition and Government Subsidies
In 2012, the U.S. Department of Commerce put tariffs as high as 36% on some of China’s biggest solar manufacturers, concluding in a final ruling that the Chinese companies were illegally dumping cheap photovoltaic cells onto the American market. The case was filed in 2011 by U.S. subsidiary of German manufacturer SolarWorld, who publicly vowed to pursue other actions to stop Chinese manufacturers from selling their solar cells outside of China. The Commerce Department ruling only applied to photovoltaic cells made in China and companies like Suntech, Trina Solar and Yingli began moving to secure supplies from third
24 France-‐Presse, Agence. "China Slams U.S. over 'protectionist' Solar Cell Duties." MNN -‐ Mother Nature Network. MNN -‐ Mother Nature Network, 18 May 2012. Web. 07 Sept. 2013. <http://www.mnn.com/earth-‐matters/energy/stories/china-‐slams-‐us-‐over-‐protectionist-‐solar-‐cell-‐duties>. 25 Weijie, Cui. "US Protectionism Hard Obstacle to Tackle." GlobalTimes.cn. The Global times, 12 May 2013. Web. 7 Sept. 2013. <http://www.globaltimes.cn/content/780977.shtml#.UisufLxhM1h>.
countries that they can sell in the U.S. tariff-‐free. Gordon Brinser, president of SolarWorld Industries America, said in a statement:
“The fight has divided the U.S. solar industry as solar installers and other companies have benefited from a 75% plunge in photovoltaic module prices over the past three years that resulted from Chinese manufacturers vastly expanding production, sometimes with the aid of government assistance and cheap bank loans.”26 In 2014, the US Department of Commerce expanded the tariffs ruling to include Taiwan, closing a loophole that had allowed Chinese manufacturers to avoid tariffs by using cells made in Taiwan. The Department of Commerce found that the Chinese companies were selling products below the cost of manufacture and that they continued to benefit from unfair subsidies from their government. saying that Chinese companies were also benefitting from products being sold from Taiwan. The US department announced anti-‐dumping duties of 26.71 percent to 78.42 percent on imports of most solar panels made in China, and rate of 11.45 percent to 27.55 percent on imports of solar cells made in Taiwan. In addition, the department announced anti-‐subsidy duties of 27.64 percent to 49.79 percent for Chinese modules.
US Companies Sue Chinese Companies to Raise Entry Cost into the US Domestic Market
Often times, says attorney John Tang, US companies will sue Chinese companies under the guise of intellectual property infringement in hopes of blocking them from the US domestic market by raising the entry barrier cost to enter the market. One example of this he noted was when GM (General Motors) sued Chinese car-‐maker Chery in 2003 so that Chery could not enter the US domestic car market. General Motors accused Chery of copying the first generation Daewoo Matiz (developed by GM Korea) with the design for the Chery QQ. General Motors then went on to accuse Chery of using a Matiz in a crash test for the Chery QQ.
GM executives claimed design duplication, which may extend to interchangeable parts, and GM China Group stated the two vehicles, "shared remarkably identical body structure, exterior design, interior design and key components."[42] After mediation attempts failed, GM Daewoo brought a case against Chery in a Shanghai court, but by 2005 jurisdiction had been moved to the Beijing No.1 Intermediate People's Court. In late 2005 the lawsuit was settled.27
26 http://www.forbes.com/sites/toddwoody/2012/10/10/u-‐s-‐hits-‐chinese-‐solar-‐manufacturers-‐with-‐higher-‐tariffs/ 27 "GM Daewoo claimed their investigation results showed the Chery QQ shared a remarkably identical body structure, exterior design, interior design and key components". BBC News. 2005-‐05-‐09. Archived from the original on 7 September 2010. Retrieved 2010-‐10-‐05.
Around that time, Chinese state officials, including a vice-‐minister of commerce and a vice-‐director of the State Intellectual Property Office, publicly supported Chery. It was suggested that GM may have not patented its technology. 28
Chapter 3: National Security Fears of Chinese companies Stealing US technologies and Trade Secrets
One-‐way China can circumvent the West’s reluctance to transfer technology is by stealing the product, trade secret, or patented technology of the product. While not technology transfer per se, counterfeiting is so common in China that it has the same practical effect. Schemes range from the subtle to blatant: benchmarking against ISO standards; patent research where a design is modified slightly, if at all, re-‐patented in China and “legally” produced with government protection; reverse engineering; imitative innovation with or without the innovation (aka imitative remanufacturing); and finally marketing the pirated product either without or with its original logo. The 2006 Hanxin (chip) scandal is the poster boy example. (Hannas 232) A. Cases and Allegations of Chinese stealing important economic trade secrets from American Companies
U.S. Charges Five Chinese Military Hackers for Cyber Espionage Against U.S. Corporations and a Labor Organization for Commercial
Advantage
A grand jury in the Western District of Pennsylvania (WDPA) indicted five Chinese military hackers for computer hacking, economic espionage and other offenses directed at six American victims in the U.S. nuclear power, metals and solar products industries.
The indictment alleges that the defendants conspired to hack into American entities, to maintain unauthorized access to their computers and to steal information from those entities that would be useful to their competitors in China,
28 "Chery even used a camouflaged Matiz car to pass auto tests to acquire authorization from the government over production and sales of QQ." Chinadaily.com.cn. 2005-05-09. Archived from the original on 7 September 2010. Retrieved 2010-10-05.
including state-‐owned enterprises (SOEs). In some cases, it alleges, the conspirators stole trade secrets that would have been particularly beneficial to Chinese companies at the time they were stolen. In other cases, it alleges that the conspirators also stole sensitive, internal communications that would provide a competitor, or an adversary in litigation, with insight into the strategy and vulnerabilities of the American entity.
“This is a case alleging economic espionage by members of the Chinese military and represents the first ever charges against a state actor for this type of hacking,” U.S. Attorney General Eric Holder said. “The range of trade secrets and other sensitive business information stolen in this case is significant and demands an aggressive response. Success in the global market place should be based solely on a company’s ability to innovate and compete, not on a sponsor government’s ability to spy and steal business secrets. This Administration will not tolerate actions by any nation that seeks to illegally sabotage American companies and undermine the integrity of fair competition in the operation of the free market.”
“For too long, the Chinese government has blatantly sought to use cyber espionage to obtain economic advantage for its state-‐owned industries,” said FBI Director James B. Comey. “The indictment announced today is an important step. But there are many more victims, and there is much more to be done. With our unique criminal and national security authorities, we will continue to use all legal tools at our disposal to counter cyber espionage from all sources.”
“State actors engaged in cyber espionage for economic advantage are not immune from the law just because they hack under the shadow of their country’s flag,” said John Carlin, Assistant Attorney General for National Security. “Cyber theft is real theft and we will hold state sponsored cyber thieves accountable as we would any other transnational criminal organization that steals our goods and breaks our laws.”
“This 21st century burglary has to stop,” said David Hickton, U.S. Attorney for the Western District of Pennsylvania. “This prosecution vindicates hard working men and women in Western Pennsylvania and around the world who play by the rules and deserve a fair shot and a level playing field.”29
Defendants : Wang Dong, Sun Kailiang, Wen Xinyu, Huang Zhenyu, and Gu Chunhui, who were officers in Unit 61398 of the Third Department of the Chinese People’s Liberation Army (PLA). The indictment alleges that Wang, Sun, and Wen, among others known and unknown to the grand jury, hacked or attempted to hack into U.S. entities named in the indictment, while Huang and Gu supported their conspiracy by, among other things, managing infrastructure (e.g., domain accounts) used for hacking.
29 http://www.justice.gov/opa/pr/us-‐charges-‐five-‐chinese-‐military-‐hackers-‐cyber-‐espionage-‐against-‐us-‐corporations-‐and-‐labor
Victims : Westinghouse Electric Co. (Westinghouse), U.S. subsidiaries of SolarWorld AG (SolarWorld), United States Steel Corp. (U.S. Steel), Allegheny Technologies Inc. (ATI), the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) and Alcoa Inc.
The FBI conducted the investigation that led to the charges in the indictment. This case is being prosecuted by the U.S. Department of Justice’s National Security Division Counterespionage Section and the U.S. Attorney’s Office for the Western District of Pennsylvania. Chinese engineer accused of stealing trade secrets from GE unit
A Chinese engineer who worked in Waukesha for a subsidiary of GE Healthcare stole about 2.4 million files of trade secrets and other confidential company information and sent it to China, according to GE and the FBI. Jun Xie, 41, who joined the medical equipment giant in 2008, was suspended and hit with a civil suit by the company. Later, in September of 2014, Xie was charged in federal court with criminal theft of trade secrets. The case is at least the second involving theft of sensitive technical data by a Chinese citizen working in the Milwaukee area. In 2013, a cancer researcher at the Medical College of Wisconsin was charged with economic espionage before later pleading guilty to a lesser charge.
According to the criminal complaint, GE officials discovered in June of 2014 that Xie had accessed and copied about 2.4 million files — about 1.4 terabytes of data — from the company's secure network, starting in February 2013. Much of the information was of the type Xie was not authorized to use and was not necessary to his work writing source code for magnetic resonance technology. The files included engineering designs, testing data, business strategy and source code for magnetic resonance systems. In court documents, GE said it would suffer "irreparable harm" if the trade secrets were disclosed.30
Xie said he began downloading GE's materials after his wife moved back to China from Waukesha early last year, and he realized he would return there, too, and would need to find work. He told FBI agents that he downloaded materials he knew were important to GE Healthcare, copied it to separate storage devices and sent them to his wife and brother in China. Xie also said planned to join a Chinese company that competes with GE in the MRI field but said he never gave the other firm the GE information and only intended to use it himself.
General Electric sued Xie in federal court in July, alleging claims of conversion, breach of contract, state and federal computer fraud, and violations of the trade secrets act.GE asked for damages as well as court orders that Xie return all confidential, proprietary information to GE, cease accessing, copying or disclosing
30 http://media.jrn.com/documents/gecomplaint.pdf
such information, and preserve all documents relative to his actions. A federal magistrate judge in Milwaukee granted a permanent injunction to prevent Xie from obtaining any more GE information and ordering that he try to get back the storage devices he sent to China.
Xie joined GE Healthcare in 2008 as an engineer to write source code for GE's magnetic resonance technology. GE Healthcare is a major manufacturer of magnetic resonance imaging machines. The criminal complaint says he was in the U.S. under an H1B non-‐immigrant work visa and had been in the country since 2002.
Amanda Gintoft, a spokeswoman for GE Healthcare Systems, issued this statement after an inquiry to the company's attorney in the civil suit:"GE considers theft of its intellectual property a very serious matter and will take all steps necessary to pursue those who engage in such acts. We will cooperate fully with the government in its criminal investigation but, as a company policy, GE does not comment on ongoing litigation."31
This case of corporate espionage may be part of a larger trend of Chinese companies recruiting overseas Chinese to help them obtain vital trade secrets. According to Attorney John Tang: “Chinese companies target Overseas Chinese 华侨 or Chinese nationals who have immigrated to the US and work for large US companies because the Chinese believe they are “easier to bribe” and still feel loyal to China. They offer them a large sum of money for them to transfer documents containing sensitive technology information to China. This is so Chinese companies will have the knowledge and wherewithal to compete with the US companies once they have their trade secrets in hand.” (Tang Interview 1/12/2015). B. China’s Domestic Protectionism: ICT Standards, Public Interest, and National Security Chinese Protectionism in Technological Standards
The US is not the only one who can employ protectionist measures towards its domestic market. One example is the Chinese implementation of technology standards within their ICT communication sector. For instance, the Chinese government can mandate that all parts of their domestic ICT Communication industry must implement certain specific patented technologies to meet government technological standards, thereby excluding foreign businesses from entering the Chinese domestic market without having help from a Chinese company that already supports this particular standard. 31 http://www.jsonline.com/news/crime/chinese-engineer-accused-of-stealing-trade-secrets-from-ge-unit-b99344912z1-274122821.html
Among a variety of standard-‐settings in the ICT sector, WAPI (Wired Authentication and Privacy Infrastructure) is the most notorious one. WAPI was developed by China and listed as a national mandatory standard for wireless LAN in late 2003. By June 1, 2004 all wireless devices sold in China had to support WAPI. Foreign companies wanting access to the Chinese market would have to partner with one of eleven Chinese firms to which the standard was disclosed. This issue became a key issue of trade discussions between the United States and China. Intel, one of the largest computer chip manufacturers, threatened to impose an embargo on its mainstream chips to the Chinese market. After the administration of then-‐US President George Bush wrote a letter to the Chinese Vice Premier, China agreed to indefinitely postpone implementation of WAPI. (Hong Xue 42)
Some would say that China’s attempt to adopt WAPI into its technological standards was an act of protectionism and would hence constitute unfair competition. If WAPI had become a standard in all of the technological devices in China, it would effectively bar foreign companies from entering the Chinese domestic market without having a partnership with the existing eleven Chinese firms. Others would say that the WAPI incident was a clear example of how Chinese ambition of independent innovation was curbed by foreign pressures, mainly the United States and US-‐based company Intel. Conclusion: The US should not overestimate China’s greatness. They should learn to work together with China instead of working against China
My thesis is about Chinese protection of Intellectual Property laws and how it affects US-‐China trade relations and technology transfer. Although China has an extensive IPR regime and is continuing to improve and revise its own IP Laws, there are still a number of loopholes that allow corruption to take place. One such loophole was the first to file policy that allowed trademark pirates to file names of famous marks abroad and then extort those same companies to buy their own names back from them. Likewise, China’s reputation for being lax in IP Law enforcement has caused it international political and economic troubles. For instance, the US brought suit against China at the WTO for lax IP enforcement.
There is much speculation that the US’s generalized “China Fear” has taken the form of protectionist trade policies towards China. For instance, the US continues to use IP protection as an excuse to enforce protectionist measures against China under Section 337, allowing companies to sue Chinese companies entering the US domestic market for the reasons of patent infringement. Likewise, the US has slapped high tariffs on Chinese imports of Solar Panel Products due to Anti-‐Dumping measures against Chinese companies who have received government subsidies. Yanping Wang of Miller Canfield says this US protectionism towards China has been a continuous trend for the last century. “The US is always finding a way to criticize China. First it was for the reasons of Communism and Human Rights
abuses. Now it is because of IP Law Infringement, Pollution, and Currency under-‐evaluation. You name it. The US always seems to find a way to vilify China in some way and alter its economic and political policies to fit whatever the popular rhetoric is of the day. In my opinion, the US is just bitter that they have had to borrow a substantial amount from China during the economic crisis and are now trying to find ways to shift the blame and negative press towards China as a way to save face (Yanping Wang 1/9/2015). “
Looking at several legal case studies involving US-‐China trade secret theft and patent infringement, the US’s fears may not be totally unfounded. Several recent corporate and cyber espionage cases involving overseas Chinese stealing trade secrets from large US Companies such as General Electric, SolarWorld, and the United States Steel Corporation are somewhat alarming. Likewise, Chinese buyouts of US companies AMC Entertainment Group and Smithfield has caused a stir in US media and has affected US public opinion of China as ‘an economic threat’ that may one day overtake and dominate the United States.
In Attorney John Tang’s opinion, however, the US should not be too concerned just yet. “Many times, Chinese companies are just looking to catch up to US standards, improving the quality of their goods and technologies to match that of the US. They aren’t necessarily looking to surpass the US.” His logic was applied to the US-‐China tire and rubber industry, which he works extensively with on an international basis. In the case of tires, as in many products, the Chinese, Tang says, are just looking to acquire the technology that is already streamlined in the US, to improve the quality of their own goods.
Whether China really is posing an economic threat of overtaking the US or the US is being overly protective, one thing remains certain: the US and China continue to have codependent economies and will have to learn to work together towards a common goal if both economies are to survive and thrive. In the case of Chinese Intellectual Property Rights, China has already made significant strives to improve their domestic enforcement situation. The Chinese Trademark Law has undergone its third revision, eliminating several loopholes where trademark piracy and corruption could thrive. Three specialized IP Law courts have also been established in the top three cities for IP infringement: Shanghai, Beijing, and Guangdong. Furthermore, Chinese domestic innovation is continuing to improve and expand as seen with technological and innovation zones such as the Shanghai Free Trade Zone, Qingdao’s Rubber Valley, and Shanghai’s KIC (Knowledge and Innovation Center) in Yangpu District. Many agree that China’s domestic IPR enforcement will have to improve as it creates its own inventions and designs and will want to enforce the patents, trademarks, and trade secrets that come with it. As China becomes a bigger player in world economics and trade, its domestic innovation will be the propelling force that drives the improvement of domestic Intellectual Property Enforcement and therefore, the quality of its own technology products.