I recently returned from a ten-day trip to China, the first time I’ve visited since before the COVID-19 pandemic. Late last year my business book Secrets had been translated into Mandarin by Fang (Helen) Liu, a lawyer/scholar at the Beijing office of law firm TianTai, and published by the Tsinghua University Press.
Liu had arranged a ‘book tour’ for me to talk about US trade secret law and management to eight of the country’s leading law schools, as well as business executives.
I had been to China quite a few times before. My first ‘official’ (that is, not tourist) visit was in 1998, to mark the opening of the Beijing IP training centre, where we were told that 600 people a month from around the country were being taught the basics of IP.
And we visited the national office of SIPO, where China’s relatively new patent system was obviously in expansion mode.
This was at the time that the country had submitted its application to join the World Trade Organization (WTO), and despite the hopeful implications for global trade, there were some in our delegation that doubted China’s intentions.
They wondered aloud whether China was really serious about building IP systems, given then-current concerns about counterfeiting. I didn’t share that perspective; while there we met with judges and government officials who obviously were deeply engaged and very well informed about the importance of IP. (They also had a good sense of humour—one judge joked that they were in the process of calculating accrued royalties owed by the rest of the world for paper, printing, gunpowder and the compass!)
I returned again in 2010, this time representing the World Intellectual Property Organization and the Patent Cooperation Treaty (PTC). China had been a member of the WTO for eight years, and any doubts about the intensity of its IP focus had disappeared. That single SIPO office in Beijing was now one of two dozen throughout the country, with PCT windows like bank tellers where patent applicants could walk up for help with filing their international applications.
China’s PCT filings were growing faster than any other country, and the quality of patent examination by China as an International Searching Authority was viewed as world class.
Specialty IP courts were established. And the related promise of rapidly expanding global commerce seemed to be realised, as the number of countries for which China was their largest trading partner increased from 10 to 50 (it’s now around 80).
As we all know, trade tensions between the US and China have increased significantly in recent years, reinforced by other aspects of their geopolitical rivalry. Some believe that a slow and inexorable ‘decoupling’ is taking place. Suspicions and disruptions caused by the pandemic have not helped.
Perhaps ironically, in January 2020, just before that global crisis took hold, the two countries had signed the ‘Phase One’ trade agreement as part of a multi-year effort to reduce trade friction. And intellectual property—specifically trade secrets—was front and centre in that document.
Much more recently, I was preparing for my ‘re-entry’ into China, and I admit to having felt some apprehension about it. Not only was (and is) the US political relationship with China at the lowest ebb I can remember, but at the end of February China had just expanded its state secrets law (for the first time since 2010) to include ‘work secrets’ in the category of restricted confidential information.
No official interpretation of this new phrase was provided. And the month before, reports had surfaced about a British businessman having been detained and charged with spying. I was now going there to lecture about ‘secrets’: what could go wrong?
Such is the grasp of (mild) paranoia on our minds. As it turned out, my visit to China was enjoyable and fascinating, and I look forward to going back. Thanks to the tireless efforts of Liu and her colleagues, I was able to meet students at the top law schools in the country: Tsinghua, Renmin, Beihang, Peking University and China University of Political Science and Law; and (in Shanghai) East China University of Political Science and Law, Shanghai Jiaotong, and Fudan.
In each of these schools, the rooms were packed, with 40 to 60 students and professors. I spoke in English, only occasionally with translation. And when I was done with my talks, the questions posed by the students were unusually insightful and sophisticated, in some instances beyond what I have experienced with my students in the US.
The TianTai law firm also organised a conference in Beijing where my remarks were supplemented by business and government representatives, all focused on practical aspects of IP protection and enforcement. And my time in Shanghai included a discussion with companies at the Commercial Mediation Center.
A significant takeaway from these events and conversations was that, even though the US-China pre-pandemic trade talks seem to have broken off, China continues to work on refining its implementation of the Phase One agreement.
As I have noted elsewhere, China started surprisingly quickly on transforming its promises into relevant changes in its laws. What I learned on this trip is that those efforts are continuing today.
Even more impressively, the scholars and soon-to-be lawyers at its law schools are deeply engaged and curious about how in the US we handle issues as specific as shifting the burden of proof in a trade secret case. Clearly, they are thinking deeply about how their domestic laws can be improved. They seem equally intrigued by how US businesses view the day-to-day management of trade secret assets.
Most frequently and consistently, however, the message I heard was that those in China who deal most directly with IP—executives, scholars and students—lament the precipitous reduction in personal contacts that began with the pandemic but continues due to geopolitical and trade tensions.
Repeatedly I heard a plea for expanded, personal engagement from people who recognise that China, like all other industrial countries, needs robust IP laws not just to encourage inbound investment but as an essential support for domestic innovation.
Global trade is important. When it involves any sort of technology, trade relies largely on aligned IP laws. This was true in 1883 when the Industrial Revolution drove agreement on the Paris Convention, and even more so now that the vast majority of business assets are intangible.
Bilateral agreements such as Phase One and plurilateral arrangements like the IP5 have led to higher quality and more reliable protections. Those good outcomes start with engagement. That doesn’t mean we should let down our guard and accept misbehaviour. But just drawing into our own corners and nursing suspicions won’t move us forward.
I’m now feeling rather embarrassed that I harboured any concerns about this trip. I absolutely plan to return again. There’s too much at stake not to continue to explore our common interests in IP.