US, China must work to promote fair adjudication of disputes, forum hears

Intellectual property law experts in the US and China are calling for the governments of both countries to work together to address challenges in the field and improve trade relations more broadly.

It's critical for the US and China to cooperate in general and on IP issues in particular, Erwin Chemerinsky, dean of Berkeley Law, said at a recent virtual conference held by the University of California-Berkeley and Tsinghua University.

"I think an underlying theme for this cooperation is the importance of having fair adjudication of disputes in the courts," said Chemerinsky. "It's essential wherever the courts are deciding these questions that they do so without bias."

Last year, the administration of Donald Trump banned the WeChat app over alleged national security concerns. Chemerinsky filed an amicus brief in support of a group of WeChat users who sued the administration for violating the First Amendment of the US Constitution. A federal judge has ruled in favor of the WeChat users.

"I think that in the world we live in now, having those kinds of media available and available to all is crucial. And I felt that what president Trump did was inconsistent with American law, and especially the First Amendment," he said.

Weixing Shen, dean of the School of Law at Tsinghua University, said that over the past three or four years, the trade relationship between China and the US has "deeply drifted into troubled waters", generating "tremendous uncertainty and anxiety in each society".

"Now, as the Trump administration has stepped down and the US has a fresh rebooting, both countries are approaching a new crossroad," he said, referring to Joe Biden's taking over as US president last month. "As two leading countries in the world, each side's political choice would heavily influence the future of our global community. At this crucial moment, mutual understanding and trust is essential from an intellectual property perspective."

Zhang Yuejiao, a law professor at Tsinghua University and former chair of the World Trade Organization Appellate Body, said she hoped the new US administration and China could "open direct dialogue as soon as possible".

It's important for the two sides to build trust now because "after a very bad trade war, people get very upset". That can enable the two countries to enhance mutual understanding to achieve win-win cooperation, said Zhang, adding that China and the US, as the two biggest economies in the world, play "a very crucial role" for the world's peaceful development.

"I strongly believe that in the field of intellectual property, we have many common grounds, many common thoughts, and many shared ideas and experience. So we should encourage direct dialogue－people to people, judges to judges, and professors to professors," she said.

Zhang cited the pharmaceutical sector as area in which cooperation can be pursued. The two countries face a common problem in relation to pharmaceutical products amid the COVID-19 pandemic, she said. How to address the tension between the need for patent protection of pharmaceutical products and meeting the public interest requires urgent resolution, the academic said.

"It requires the wisdom of all mankind to jointly overcome the pandemic and other global issues."

Zhang also told the conference that China has recently amended its laws on patents, copyright and trademarks to further improve protection. Specialized IP courts have been established in Beijing, Shanghai, Guangzhou, Shenzhen and, most recently, in Hainan.

According to the World Intellectual Property Indicators 2020 report released in December, China's IP office received 1.4 million patent applications in 2019, more than twice the number received by authorities in the US, the second-busiest country.

China's IP office had the highest volume of filing activity with a class count of around 7.8 million, followed by the IP office of the US, with 672,681 filings, the report shows.

"China moved from the third position in 2009 to claim to the top spot in 2011, and has continued to have the ranking in the past nine years," said Zhang.

Raymond Chen, a judge on the US Court of Appeals for the Federal Circuit, said: "Since my visit to Beijing nine or 10 years ago, China's intellectual property office and courts have become even more important and crucial in incentivizing, protecting and rewarding technological innovation both in China as well as around the world."

Chen said the world could realize the goal of a "worldwide patent" that would "create tremendous efficiencies" for inventors, if countries and governments "genuinely work" toward it.