中美第一阶段协议（英文全文）-2020.1-95页_1006kb

Economic and Trade Agreement Between the United States of America and the People's Republic of China: Summary

Core Content Overview

This document outlines the Phase One Economic and Trade Agreement between the United States and China, signed on January 15, 2020, focusing on intellectual property (IP) protection and enforcement. It aims to enhance mutual economic interests by addressing trade and investment concerns, improving IP frameworks, and promoting cooperation in various sectors such as pharmaceuticals, e-commerce, and counterfeit goods.

Main Chapters and Key Provisions

Chapter 1: Intellectual Property

Section A: General Obligations

• The U.S. recognizes the importance of IP protection.
• China acknowledges the need to establish a comprehensive legal system for IP protection and enforcement as it transitions from a consumer to a producer of IP.
• Both parties agree to ensure fair and equitable market access for IP holders from the other country.

Section B: Trade Secrets and Confidential Business Information

• Article 1.3: Both parties agree that all natural and legal persons can be held liable for trade secret misappropriation. China defines "operators" to include all relevant entities.
• Article 1.4: Prohibited acts include electronic intrusions, breach of confidentiality, and unauthorized use. China will enumerate additional acts.
• Article 1.5: Burden of proof shifts to the accused in civil cases if the holder provides prima facie evidence of misappropriation.
• Article 1.6: Provisional measures must be prompt and effective to prevent misuse of trade secrets.
• Article 1.7: China will eliminate the requirement to prove actual losses for criminal enforcement of trade secrets, starting with lowering thresholds and eventually removing them.
• Article 1.8: Criminal procedures and penalties must address willful trade secret misappropriation, including theft, fraud, and unauthorized use.
• Article 1.9: China will prohibit unauthorized disclosure of trade secrets by government personnel and third-party experts in legal proceedings. It will also implement penalties for such disclosures.

Section C: Pharmaceutical-Related Intellectual Property

• Both parties agree to protect pharmaceutical IP, including patents and undisclosed test data.
• Article 1.10: China will allow pharmaceutical patent applicants to use supplemental data during patent examination and judicial proceedings.
• Article 1.11: China will establish a system for early resolution of patent disputes, including notice procedures and expeditious remedies like preliminary injunctions.

Section D: Patents

• Article 1.12: Patent term extensions will be available to compensate for unreasonable delays in patent granting or marketing approval. China may limit extensions to five years, resulting in a maximum term of 14 years.

Section E: Piracy and Counterfeiting on E-Commerce Platforms

• Article 1.13: China will implement an effective notice and takedown system for online infringement, with a 20-day deadline for complaints and penalties for bad faith notices.
• Article 1.14: E-commerce platforms may lose their licenses for repeated failure to curb counterfeit goods. The U.S. is studying additional measures to combat such goods.

Section F: Geographical Indications

• Article 1.15: China will ensure that measures related to GI recognition do not hinder U.S. exports using trademarks or generic terms.
• Article 1.16: China will consider consumer understanding and usage patterns when determining if a term is generic. GI terms may become generic and be subject to cancellation.
• Article 1.17: Multi-component terms protected as GIs will not protect individual components that are generic. China must identify non-protected components publicly.

Section G: Manufacture and Export of Pirated and Counterfeit Goods

• Article 1.18: China will take enforcement action against counterfeit pharmaceuticals and related products, sharing inspection data with the U.S.
• Article 1.19: China will increase enforcement actions and publish quarterly impact reports on counterfeit goods with health and safety risks.
• Article 1.20: Counterfeit goods must be destroyed, with exceptions only in exceptional cases. Civil and criminal procedures will require destruction without compensation.

Section H: Bad-Faith Trademarks

• Article 1.24: Both parties agree to strengthen trademark protection, especially against bad faith registrations.
• Article 1.25: The U.S. confirms its current measures are equivalent to those outlined in this section.

Section I: Judicial Enforcement and Procedure in Intellectual Property Cases

• Article 1.26: China will require administrative authorities to transfer cases to criminal enforcement if there is "reasonable suspicion" of IP violations.
• Article 1.27: China will impose heavier penalties to deter IP theft. The U.S. will cooperate with China through the Intellectual Property Criminal Enforcement Working Group.
• Article 1.28: Both parties agree to ensure expeditious enforcement of IP judgments. China will publish work guidelines and quarterly reports on implementation.

Key Information and Main Points

• The agreement is a comprehensive framework to improve IP protection and enforcement mechanisms in China.
• It emphasizes fair market access, effective remedies, and cooperation between the two countries.
• Specific provisions address trade secrets, pharmaceutical patents, counterfeiting, geographical indications, and bad-faith trademarks.
• China's commitments include strengthening legal systems, increasing enforcement actions, and implementing penalties to deter IP violations.
• The U.S. affirms that its current measures are equivalent to those in the agreement and will continue to collaborate with China.

Conclusion

The Phase One Agreement is a significant step toward resolving trade and IP disputes between the U.S. and China. It establishes clear obligations for both parties to enhance legal protections, improve enforcement mechanisms, and promote fair market practices. The agreement reflects a mutual interest in fostering innovation, protecting intellectual property, and ensuring the integrity of trade and commerce between the two nations.