CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Request to Join Consultations
Communication
from the United States
The following communication, dated 4 March 2022,
from the delegation of the United States to the delegation of China, and the
delegation of the European Union, is circulated to the Dispute Settlement Body
in accordance with Article 4.11 of the DSU.
_______________
This
concerns the request for consultations by the European Union ("EU")
in China – Enforcement of Intellectual Property Rights (WT/DS611/1), as
circulated on February 22, 2022.1 My authorities have instructed me to notify the consulting Members
and the Dispute Settlement Body of the desire of the United States to be joined
in these consultations, pursuant to Article 4.11 of the Understanding
on Rules and Procedures Governing the Settlement of Disputes (DSU).
The United States has a substantial trade
interest in these consultations. According to the request for consultations, "China
has introduced and maintains a policy which in the context of judicial
procedures concerning the enforcement of intellectual property rights in China
prohibits patent holders from asserting their rights in other jurisdictions by
commencing, continuing or enforcing the results of legal proceedings before a
non-Chinese court."2 This prohibition is called an "anti-suit injunction[] enforced
through daily penalties in case of infringement."3 The request for consultations
by the EU identifies cases in which courts in China issued anti-suit
injunctions. In one of those cases,4 the Chinese court issued an
anti-suit injunction against a U.S. national.5
The United States further notes claims
relating to transparency provisions under the TRIPS Agreement. U.S. nationals
are major holders of intellectual property rights and significant economic
operators in China, and the United States has a substantial interest in China's
transparency in the area of intellectual property.
For the above reasons, the United States
considers it has a substantial trade interest in these consultations and
requests to be joined in them, pursuant to DSU Article 4.11.
The United States is providing a copy of this
letter directly to the Chairperson of the Dispute Settlement Body, with a
request that it be circulated to all Members.
__________
1 Communication
from the European Union, "China – Enforcement of
intellectual property rights: Request for Consultations by the
European Union," dated February 18, 2022 (WT/DS611/1, IP/D/43, G/L/1427)
(circulated February 22, 2022) ("EU Request for Consultations")
(requesting consultations pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU), Article 64.1 of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement), and Article XXII:1 of the General Agreement on
Tariffs and Trade 1994 (GATT 1994)).
2 EU Request for Consultations, p. 1.
3 EU Request for Consultations, p. 1.
4 EU Request for
Consultations, p. 2, fn. 8 (citing Wuhan Intermediate People's Court of Hubei
Province, case (2020) E 01 Zhi Min Chu No.169).
5 Interdigital,
Inc., is a U.S. corporation with corporate headquarters in Wilmington,
Delaware, United States of America.