USTR Clarifies Demand For Details On China’s IPR Enforcement Cases

The Office of the US Trade Representative (USTR) has clarified the legal basis for its insistence that China provide the details of numerous judicial cases involving the enforcement of intellectual property rights from 2001 through 2004.

The clarifications are contained in a 20 January letter (obtained by Intellectual Property Watch) from Peter Allgeier, US ambassador to the World Trade Organization, to counterpart Sun Zhenyu, China’s WTO ambassador.

The United States, Japan and Switzerland in October launched bilateral actions through the WTO to obtain details of the enforcement cases (IPW, WTO/TRIPS, 26 October). The three nations made the request under the little-used Article 63.3 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which states:

“Each member shall be prepared to supply, in response to a written request from another member, information of the sort referred to in paragraph 1 [regarding, among other things, judicial decisions on the enforcement of intellectual property rights]. A member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.”

The USTR letter responds to a 22 December request for clarification sent by China. Chinese officials did not comment by press time.

In its letter, USTR argues its request falls within the scope of requests permitted by the second sentence of Art. 63.3. It also said that where the cases identified by China include “judicial decisions and administrative rulings of general application,” it also falls under the first sentence of Art. 63.3.

USTR also elaborated on why the cases affect US rights under TRIPS, citing TRIPS Art. 41.1 which requires members to ensure their enforcement procedures “permit effective action against any act of infringement,” and include “remedies which constitute a deterrent to further infringement.”

USTR argues that the cases in question were raised by China itself as examples of implementation of TRIPS enforcement provisions, including in a white paper circulated at the October TRIPS Council meeting.

“My government has ample reason to believe that these cases affect rights of the United States and other WTO members under the TRIPS agreement because your government has told members as much, and even urged members to study them,” the US letter said.

In October, Chinese officials objected to the request, indicating among other things, that the broad-stroke request sought an unwieldy number of cases without being sufficiently specific about which ones or why, as required under Art. 63.3.

USTR said it is “perplexed” by China’s request that the United States identify a specific decision or ruling, as it was “China, not the United States, that identified this set of specific cases to the TRIPS Council,” it said. This was done by confirmation of the existence of the cases, and the United States “simply requests that China reveal precisely what those dispositions were.”

USTR also indicates that China’s December letter states that Art. 63.3 allows members to request information, but contains no obligation for the requested member to do so. USTR does not explicitly counter that point but argues a response should be made in “good faith and a spirit of cooperation.”

Finally, USTR invites China to discuss any difficulties that may arise in providing the requested information.

Available here: US letter on China