Trump Signs Economic and Trade Agreement with China

On January 15, 2020, President Trump signed a lengthy “Economic and Trade Agreement Between the Government of the [US] and the Government of [P. R. of China].” Chapter 1 is entitled “Intellectual Property”  that contains Sections on trade secrets, pharmaceuticals, patents, piracy and counterfeiting, geographical indications (involving TM disputes), manufacture and export of pirated and counterfeit goods (including counterfeit medicines), bad faith trademarks, judicial enforcement (e.g., via criminal proceedings), bilateral cooperation and implementation.

Most of the Sections seem to be intended to require China to move its IP system so that it is more closely aligned with U.S. IP law. Many of the articles, which can be lengthy, end with “The [US] affirms that existing U.S. measures afford treatment equivalent to that provided for in this Article”. In other words, we are doing enough right now.

This includes the two  articles in Section C – Pharmaceutical-Related IP—and Section D: “Patents”, which only contains one article and relates to patent term extension. The two articles under “Pharmaceutical-Related Intellectual Property, permit applicants for pharmaceutical patents to rely on supplemental data to satisfy relevant requirements of patentability [ed.’s note: 132 Declarations?], and requires China to develop Hatch-Waxman type proceedings to manage the marketing of generics.

Section F (1.18) requires China to take expeditious enforcement action against counterfeit “medicines and biologics.” Interestingly, this article requires China to share plant inspection data with the US and to publish information reporting data on enforcement measures.

Section J is entitled “Bilateral Cooperation on Intellectual Property Protection” and require “biennial cooperation of work plans” to “promote pragmatic cooperation in this area.” I wonder if that will include reaching agreement on what inventions are eligible for patent protection?

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