CHINA/IPR: U.S.-CHINA ECONOMIC AND

UNCLAS BEIJING 003273 SIPDIS INFO CHINA POSTS USDOC FOR NATIONAL COORDINATOR FOR IPR ENFORCEMENT - CISRAEL USDOC FOR ITA/OCEA/MCQUEEN USDOC FOR ITA DAS KASOFF USDOC PASS USPTO FOR DUDAS, ANTHONY, BOLAND, WU, TONG STATE PASS USTR FOR STRATFORD, WINTER, ALTBACH, ESPINEL, BAE, MCCOY, CELICO GENEVA PASS USTR STATE ALSO FOR H STATE PSS US-CHINA ECONOMIC AND SECURITY REVIEW COMMSSION USDOJ FOR CCIPS - ASHARRIN USDOJ FOR CHEMTOB FTC FOR BLUMENTHAL FBI FOR LBRYANT TDA FOR SCHOW DHS/ICE FOR IPR CENTER - DFAULCONER DHS/CBP FOR IPR RIGHTS BRANCH - PPIZZECK SENSITIVE SIPDIS E.O. 12958: N/A TAGS: ETRD KIPR EIND PREL WTRO CH SUBJECT: CHINA/IPR: U.S.-CHINA ECONOMIC AND SECURITY REVIEW COMMISSION EXPRESSES CONCERNS TO MOFCOM ¶1. (SBU) Summary: In an April 23 meeting with the U.S.-China Economic and Security Review Commission (USCC) that focused on the state of IPR protections in China, Ministry of Commerce (MOFCOM) North American Affairs Deputy Director General Jin Xu told USCC Chairwoman Carolyn Bartholomew and other delegation members that China continues to take IPR matters seriously and has made more progress in recent years in areas such as education and enforcement. Jin pointed to efforts by MOFCOMQs IPR Working Group, including its annual release of Action Plans on IPR Protection, as evidence that China is making real progress. Repeating official positions, Jin noted that ChinaQs IPR situation is not unique in the world and that others should look at the structure of ChinaQs judicial system to understand how ChinaQs IPR enforcement worked. MOFCOM Fair Trade Bureau Office Director Liu Danyang raised the issue of the United States Department of CommerceQs countervailing duty assessment against certain Chinese paper manufacturers, calling it a form of discrimination stemming from a miscalculation by the Department of Commerce. USCC delegation members urged Jin to recognize that, despite ChinaQs claims of progress, United States businesses continue to complain about a lack of improvement in ChinaQs IPR environment and that there are growing concerns about ChinaQs decision to create categories of state-supported Qpillar industries. End Summary. MOFCOM Claims IPR Progress, But Gives Few Examples -------------- ¶2. (SBU) In an April 23 meeting with the U.S.- China Economic and Security Review Commission (USCC),Ministry of Commerce North American Affairs Deputy Director General Jin Xu said that China continues to take IPR matters seriously and has made more progress in recent years in areas such as education and enforcement. ChinaQs annual March 15 QConsumer Rights Protection Day and a 2006 conference in Xiamen to solicit IPR feedback from the international business community and Chinese provincial governors are examples of how China continues to improve its IPR environment. As further evidence of ChinaQs efforts, MOFCOM IPR Working GroupQs Chou Zhongyi cited the release of the 2007 Action Plan on IPR Protection which covered 276 measures over 10 issue areas, larger than the 2006 IPR Action Plan which contained only 160 measures. When asked for additional examples of recent IPR progress, however, Chou did not give any further information and instead referred the delegation to the 2007 Action Plan web site for more information. ¶3. (SBU) In response to a USCC question on how China would manage innovation and patent policy as the country developed further, Chou said that China is working on measures as part of President Hu JintaoQs plan for China to become an Qinnovative countryQ by 2020. China held a technology innovation conference in January 2006 to address these very issues, and Chou affirmed that the concept of IPR-protected innovation is fundamental to ChinaQs plans. Chou also acknowledged that, according to Chinese patent law, those who invest resources in a discovery are the owners of the patent. The purpose of measures that support innovation is to guarantee the patent ownership incentive. Only General Explanations For China's IPR System -------------- ¶4. (SBU) Asked specifically what mechanisms MOFCOM uses to bring IPR problems to the attention of the ChinaQs legislating bodies, DDG Jin said that the IPR Working Group under the leadership of Vice Premier Wu Yi cooperates closely with 30 different Chinese government offices to develop practical approaches and make laws more effective. Jin noted that China now had Qtens of thousandsQ of people in government working on IPR enforcement, and it is important for others to understand that China uses both administrative measures and criminal enforcement as tools in IPR protection. ¶5. (SBU) USCC Commissioner Richard DQAmato recalled that a Chinese IPR analyst had once recommended that China create an intermediate level court of appeals specifically to address IPR cases whose hearings would otherwise be delayed by backlogs in higher courts. MOFCOM Fair Trade BureauQs Liu Danyang said that the idea should be discussed with the courts themselves, and he questioned what jurisdictions such a court would cover. IPR Working GroupQs Chou added that ChinaQs judicial system already has Qone to two thousand judgesQ specializing in IPR issues. Furthermore, he said, although China does not have dedicated courts for IPR, there are divisions in the judicial system that already cover those issues. ¶6. (SBU) USCC Commissioner Jeffrey Fiedler encouraged the Chinese delegation to consider that the politics in the IPR dispute between the United States and China are real, and suggested that Chinese officials not be too outwardly sensitive that certain groups in the United States may seem unaware of the full scope of ChinaQs efforts on the IPR front. Regardless of ChinaQs efforts, losing money and jobs due to IPR violations in China is still likely to upset United States businesses, and many in the United States thought that the USTRQs WTO complaint against ChinaQs IPR violations did not go far enough. Delegation members also expressed concern that the creation of Qpillar industry categories in China is causing heightened concern about subsidies for Chinese firms and how those firms behave internationally. Jin answered that the creation of pillar industries is a result of ChinaQs changing economy and a new focus on energy and infrastructure. China, he said, is even looking to develop domestic manufacturing capacity in specific sectors like aviation that could lead to export opportunities. MOFCOM Upset by USTRQs WTO Filings and Commerce CVD Determination -------------- ¶7. (SBU) On the issue of USTRQs filing of a WTO case against China for IPR violations, MOFCOM IPR Working GroupQs Chou said China was Qdisturbed and QregrettedQ USTRQs action. China understands that IPR is a necessity of development, but pressure from the United States and EU is not the right way to achieve progress. Jin later told the delegation that China needs its American friends to tell the United States people and policymakers about ChinaQs progress in IPR. ¶8. (SBU) On the issue of the Department of CommerceQs preliminary find of countervailing duties (CVD) on coated free sheet paper from China, Fair Trade Bureau Office Director Liu said that the United States has Qmisunderstood subsidies in China. Every country has some subsidies, he said, some of which are even allowed by the WTO. Liu insisted that China does not have as many subsidies as the United States presumed. Citing the example of four previous CVD complaints from Canada, Liu said that three cases were determined not to have subsidies, and in the one case where a subsidy was determined to exist, it was small, only 3-5 percent. In this coated paper case, Liu said, the Department of Commerce used a Qsurrogate benchmarkQ on the loan rate to calculate the subsidy, which was the wrong methodology to use and resulted in double- counting. This determination, which Liu called a form of discrimination, was unfair to Chinese companies and is having negative effects on Chinese industry. He urged USCC to play a role in talking with the Department of Commerce to find a way out of this legal issue. Both sides should seek to increase the benefits of the relationship, he said, not make more problems. Meeting Participants -------------- ¶9. (U) United States Participants: Carolyn Bartholomew, Chairwoman, USCC Daniel Blumenthal, Vice Chairman, USCC ¶C. Richard DQAmato, Commissioner, USCC Jeffrey Fiedler, Commissioner, USCC Kerri Houston, Commissioner, USCC Larry M. Wortzel, Commissioner Marta McLellen, Analyst, USCC Dante Paradiso, Embassy Beijing Political Officer Michael Pignatello, Embassy Beijing Economic Officer (note taker) ¶10. (U) Chinese Participants: Jin Xu, Deputy Director General, North American Affairs, Ministry of Commerce Chou Zhongyi, Officer, IPR Working Group, Ministry of Commerce Liu Danyang, Office Director, Fair Trade Bureau, Ministry of Commerce Tan Yuwei, Assistant, North American Affairs, Ministry of Commerce Gong Rui, Assistant, North American Affairs, Ministry of Commerce ¶11. (U) The USCC delegation has cleared this report. RANDT