美国对华知识产权压力焦点变迁与趋势预见

The focus change and trend forecast of US intellectual property pressure on China

美国是国际知识产权规则变革的主要推动者,通过将知识产权保护和对外贸易捆绑关联,在全球范围推行更高的知识产权保护和执法标准。经过多年实践,美国灵活运用(早期的)TRIPS多边机制以及(近期的)有选择多边、小多边、双边自由贸易协定提升了知识产权保护标准,形成以国内立法、行政和司法部门紧密配合的全球知识产权保护网络。美国频繁借助特别301条款及其年度报告,有计划地对外输出知识产权压力,监督贸易伙伴知识产权制度执行,迫使贸易伙伴建立美国主导下的知识产权保护制度规则。本文以1989-2022年美国贸易代表办公室发布的33份《特别301报告》为基础材料,分析美国对华知识产权压力变迁,并对未来发展趋势做出预见。研究结论显示,我国知识产权制度调整伴随美国外部压力,呈现周期特征。美国对华知识产权压力持续分布在国际规则与国内法律制度、国家知识产权保护执法体系、假冒盗版与全球执法协作、泛国家安全与高技术产业竞争等方面,呈现出在继续关注传统议题发展的同时,重点向涉及国家安全与产业竞争转移的演变趋势。未来,中美将进一步围绕高技术产业、数字经济、信息和通信技术产品市场准入等关键知识产权议题展开激烈博弈。我国应主动研判世界知识产权制度变革趋向,强化知识产权保护的改革试点机制与国家创新举措,针对可预见的压力重点分类施策,科学制定国家知识产权对外政策,有效参与知识产权全球治理。

The United States is the main promoter of the reform of international intellectual property rules.By tying up intellectual property protection and foreign trade,it promotes higher standards of intellectual property protection and enforcement around the world.After years of practice,the United States has made flexible use of the TRIPS multilateral mechanism(earlier)and the selective multilateral,mini-multilateral and bilateral free trade agreements(more recently)to improve intellectual property protection standards,forming a global intellectual property protection network closely coordinated by the domestic legislative,administrative departments and judicial departments.On the one hand,the United States has enhanced the legal legitimacy of protecting intellectual property with higher standards worldwide.With the help of legal rules such as"international treaties","free trade agreements"and"bilateral economic and trade agreements",it has incorporated higher standards of intellectual property protection into international trade and promoted the intellectual property rules of the United States to enter the domestic legal framework system of trading partners.On the other hand,the United States has strengthened global law enforcement beyond the TRIPS Agreement,frequently setting up market barriers in the name of national security,blocking technology transfer and investment mergers and acquisitions.In order to achieve the goal of curbing the industrial development of major competitors,the focus of the United States on the field of intellectual property has gradually expanded from the construction of traditional legal system,market economy status,export restrictions to emerging fields such as high-tech industry,data sovereignty,network security,etc.,and used"long arm jurisdiction"to take a"small court high wall"type of precision attack on Chinese high-tech enterprises.In order to consolidate the improvement of the global intellectual property competition strategy,the United States frequently uses special section 301 and its annual report to systematically export intellectual property pressure,supervise the implementation of the intellectual property system of trading partners and force trading partners to establish rules of intellectual property protection system led by the United States.Based on 33 Special 301 reports issued by Office of the United States Trade Representative from 1989 to 2022,this paper analyzes the changes in the pressure of the United States on Intellectual property in China and predicts the future development trend.The conclusion shows that the adjustment of China's intellectual property system is accompanied by the external pressure of the United States and presents a cyclical feature.The pressure of intellectual property on China continues to be distributed in international rules and domestic legal system,national intellectual property protection and law enforcement system,counterfeiting and piracy and global law enforcement cooperation and pan national security and high-tech industry competition.While continuing to pay attention to the new development of traditional key issues,the focus is on the evolution of global competition involving national security and industry.After the Sino-US trade war in 2018,the US intellectual property pressure on China has obviously turned to national security and competition in high-tech industries,and has expressed serious concerns about trade secrets,technology transfer in high-tech industries,network security,and data sovereignty.Looking at the long-term trend,developed countries such as the United States will continue to promote the establishment of higher standards of intellectual property protection rules,and the overall trend of enhanced intellectual property protection will be maintained on a global scale.The objects of intellectual property protection will cover a wider range with the emergence of new technologies,the average protection period will be longer and the protection will be stronger.Countries will continue to strengthen judicial assistance between each other on the basis of maintaining the independence of intellectual property jurisdiction,and jointly combat international intellectual property infringement.In the future,the"technology decoupling"between China and the United States is likely to become a long-term trend.The differences between China and the United States in the field of intellectual property rights will no longer be just institutional understanding and conceptual differences.U.S.intellectual property pressure on China will be manifested in curbing China's scientific and technological progress and industrial upgrading for a long time.China and the United States will further engage in a fierce game on key intellectual property issues such as high-tech industries,the digital economy and market access for information and communication technology products.These acts are to prevent the formation of surpassing the advanced manufacturing capacity of the United States and the United States will further focus on four aspects below:First,the United States will continue to pay attention to national security and future competition issues and network security,data sovereignty,high-tech industry competition,technology transfer and trade secrets will become the focus.Second,the United States will continue to put pressure on China on counterfeiting and piracy,and its focus will shift to e-commerce platforms and the Internet as mainstream media develop.Third,with the continuous improvement of China's system and the emergence of new protection rules such as data,new pressure focus will be put on the establishment of higher standards of international protection rules centering on data protection and intellectual property security.Fourth,international intellectual property rules on judicial and criminal cooperation,customs cooperation,climate change,public health,postal services,biodiversity,development agenda and other relevant systems will also be reflected in the long-term intellectual property disputes between China and the United States.Facing the increasingly intensified Sino-US competition,China should take the initiative to study and evaluate the reform trend of the world intellectual property system,strengthen the reform pilot mechanism and national innovation measures of intellectual property protection,make policies according to the key categories of predictable pressures,formulate national intellectual property foreign policies scientifically,effectively resolve the external pressures of intellectual property and actively participate in the global governance of intellectual property.