After the United States and other countries raised significant concerns, the issuing agencies proposed amendments for public comment to some, but not all, of the intellectual property-related requirements, in April 2010. For example, China proposed to eliminate a requirement relating to trademarks. However, the requirement relating to Chinese enterprise ownership of the intellectual property was only proposed to be changed to require a grant or transfer of intellectual property, e.g., through a license, irrespective of whether the owner preferred not to license its intellectual property to a Chinese entity. In addition, China did not propose to amend a provision relating to the requirement for eligible products to contain "Chinese intellectual property and proprietary brands."
The United States and other governments, as well as international business associations, made their comments and concerns known regarding these and other aspects of the National Indigenous Innovation Product Accreditation System. The U.S. Government also requested that the Chinese government invalidate the many Chinese provincial and municipal indigenous innovation product accreditation measures that conditioned accreditation for government procurement preferences on – for example – the location of the development or ownership of intellectual property. In addition, the U.S. Government requested that China's draft Regulations Implementing the Government Procurement Law, which had been published by China's Ministry of Finance in proposed form for public comment, be amended to remove the requirement in proposed Article 9 to formulate indigenous innovation product lists for government procurement preferences, mandates and other purposes.
The United States raised these concerns at the May 2010 Strategic and Economic Dialogue. China agreed to ensure that its innovation policies will be consistent with the following principles: non-discrimination; support for market competition and open international trade and investment; strong enforcement of intellectual property rights; and, consistent with WTO rules, leaving to agreement between individual enterprises the terms and conditions of technology transfer, production processes and other proprietary information. China and the United States also agreed to create an Innovation Dialogue involving all relevant U.S. and Chinese agencies, which meets at the Minister-led and experts' level to discuss, inter alia, Chinese innovation and technology transfer policies.
Additionally, at the 2010 JCCT, in 2010 meetings of the JCCT IPR Working Group, and at the summit meeting in January 2011 between President Obama and President Hu Jintao, the United States raised its concerns regarding China's indigenous innovation product accreditation system. Notably, President Hu stated that "China will not link its innovation policies to the provision of government procurement preferences." This is a very important commitment, and the United States looks forward to full implementation of this commitment in all Chinese central, provincial and municipal laws, regulations, rules and regulatory documents that link innovation policies to the provision of government procurement preferences.
Indigenous Innovation and Place of Intellectual Property Ownership or Development
During the 2010 JCCT process, including in a meeting of the JCCT IPR Working Group and at the JCCT plenary meeting, the United States requested that China not condition government preferences on the location of intellectual property ownership and development. The United States recognized that the requirement for "Chinese intellectual property and proprietary brands" in the Indigenous Innovation Product Accreditation System was also a factor referenced in important Chinese
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