Sustained U.S.-China engagement through the JCCT, the U.S.-China Strategic and Economic Dialogue (S&ED), and high-level government engagement has resulted in important Chinese commitments, including "that technology transfer and technological cooperation shall be decided by businesses independently and will not be used by the Chinese government as a pre-condition for market access," and that China will "treat and protect intellectual property rights (IPR) owned or developed in other countries the same as domestically owned or developed IPR." In addition, at the 2012 JCCT, China "reaffirmed that technology transfer and technology cooperation are the autonomous decisions of enterprises" and pledged further that "[i]f departmental or local documents contain language inconsistent with the above commitment, China will correct them in a timely manner." At the 2013 JCCT, China committed not to implement rules or finalize a draft catalogue containing indigenous innovation criteria for the procurement of vehicles for official use that are inconsistent with China's 2012 JCCT commitment. The United States looks forward to China's full implementation of its commitments, and the revision of other measures, including elements of the High and New Technology Enterprise tax incentive, including requirements that beneficiaries license core IP exclusively to a party in China and make 60 percent of their global research and development expenditures in China.
Patent-Related and Other Policies
IPR and technological standards
The growing importance of IPR and technological standards in China heightens U.S. concerns with a range of Chinese government policies and practices. Whereas open, voluntary, and consensus-based standards best promote economic development, efficiency and innovation, standards development bodies in China often employ opaque and exclusionary practices to the detriment of U.S. and other foreign parties. China's standards setting bodies reportedly often deny membership or participation rights to foreign parties, effectively shutting them out of the process. In some cases, such bodies may condition a firm's ability to participate on it acting through a joint venture in which it can only have a minority ownership stake, the licensing of a firm's IP on concessional terms, or a firm's transfer of technology. Based on a limited number of investigations conducted to date, there is also growing concern that Chinese competition authorities may target for investigation foreign firms that hold IPR that may be essential to the implementation of certain technological standards. Industry reports of intimidating and non-transparent investigative conduct contribute to these concerns. In the related realm of national standards, the Standardization Administration of China (SAC) and the State Intellectual Property Organization (SIPO) published Regulatory Measures on National Standards Involving Patents (Interim) that went into effect on January 1, 2014. The final version of the provisional measures addressed a number of U.S. government and industry concerns with earlier drafts. However, uncertainty remains as to how the measures apply to patent holders who are not participants in the particular standards development process to which the measures apply. In particular, with respect to patents relevant to a particular standard under development, such measures include a provision that encourages non-participant holders of such patents to disclose the patents and provisions regarding requests for licensing declarations from holders of such patents. The United States is concerned by any suggestion that standards-related disclosure and licensing obligations extend to patent holders electing not to participate in standards development.
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