United States International Trade Commission

Investigation No. 332-514

USITC Publication 4199 (amended)

November 2010

China: Intellectual Property 

Infringement, Indigenous 

Innovation Policies, and 

Frameworks for Measuring 

the Effects on the U.S. 

Economy
Address all communications to 

Secretary to the Commission 

United States International Trade Commission 

Washington, DC 20436

U.S. International Trade Commission

COMMISSIONERS 

 

Deanna Tanner Okun, Chairman 

Irving A. Williamson, Vice Chairman 

Charlotte R. Lane 

Daniel R. Pearson 

Shara L. Aranoff 

Dean A. Pinkert

Karen Laney

Acting Director of Operations

Robert Carr

Acting Director, Office of Industries

Robert B. Koopman

Director of Economics
U.S. International Trade Commission

Washington, DC 20436 

www.usitc.gov

USITC Publication 4199 (amended) November 2010

China: Intellectual Property Infringement, 

Indigenous Innovation Policies, and 

Frameworks for Measuring the Effects on 

the U.S. Economy

Investigation No. 332-514
Project Leaders 

Katherine Linton Alexander Hammer 

katherine.linton@usitc.gov alexander.hammer@usitc.gov

Deputy Project Leader 

Jeremy Wise 

jeremy.wise@usitc.gov 

Office of Industries

Renee Berry, Laura Bloodgood, Jeffery Clark, Shannon Gaffney, Cathy Jabara, 

John Kitzmiller, Elizabeth Nesbitt, George Serletis, Donald Sussman, and Isaac Wohl 

Office of Economics 

Robert Feinberg, Michael Ferrantino, Kyle Johnson, and Tani Fukui 

Office of the General Counsel 

Sidney Rosenzweig 

Special Assistance from 

Joseph Cooter, Alison Gosney, Dong Hong, Kyle Hutzler, 

Lara Loewenstein, Kathryn Lundquist, and Donnette Rimmer 

Primary Reviewers 

Lynn Levine and Brian Allen 

Administrative Support 

Lynette Gabourel, Phyllis Boone, 

Nadine Siler, and Sharon Greenfield 

Under the Direction of 

Robert Carr, Chief

Natural Resources and Metals Division 
i 

ABSTRACT 

Intellectual property rights (IPR) infringement in China reduces market opportunities and 

undermines the profitability of U.S. firms when sales of products and technologies are 

undercut by competition from illegal, lower-cost imitations. Intellectual property (IP) is 

often the most valuable asset that a company holds, but many companies, particularly 

smaller ones, lack the resources and expertise necessary to protect their IP in China. 

“Indigenous innovation” policies, which promote the development, commercialization, 

and purchase of Chinese products and technologies, may also be disadvantaging U.S. and 

other foreign firms and creating new barriers to foreign direct investment (FDI) and 

exports to China. 

China’s World Trade Organization (WTO) accession in 2001 marked a milestone in the 

country’s integration in the global economy. China has developed into one of the world’s 

most important growth markets and is now the second-largest U.S. trading partner (after 

Canada). As one important aspect of WTO accession, China committed to complying 

with the requirements of the WTO Trade-Related Aspects of Intellectual Property Rights 

(TRIPS) Agreement. However, IPR infringement in China—including violations of 

copyrights, trademarks, patents, and trade secrets—remains a central area of U.S. concern 

in the bilateral trade relationship. 

This is the first of two reports requested by the U.S. Senate Committee on Finance 

(Committee) on the effects of IPR infringement and indigenous innovation policies in 

China on U.S. jobs and the U.S. economy. In this report, the U.S. International Trade 

Commission (Commission or USITC) was requested to describe the principal types of 

reported IPR infringement in China, describe Chinese indigenous innovation policies, and 

outline an analytic framework for determining the effects of both IPR infringement and 

indigenous innovation policies on the U.S. economy. 

Editor’s note: Information received after initial publication has resulted in a correction to 

page 2-13 of the report. 
ii 
iii

CONTENTS 

Page

Abstract................................................................................................................................... i

Acronyms............................................................................................................................... ix

Executive Summary....................................................................................................... xiii

Chapter 1 Introduction............................................................................................. 1-1

 Scope and approach............................................................................................................. 1-2

 Organization........................................................................................................................ 1-3

 Key concepts: IPR and indigenous innovation in China..................................................... 1-4

 Copyrights........................................................................................................................ 1-4

 Trademarks ...................................................................................................................... 1-5

 Patents ............................................................................................................................. 1-6

 Trade secrets.................................................................................................................... 1-7

 Indigenous innovation ..................................................................................................... 1-7

 IPR enforcement in China................................................................................................... 1-8

 Administrative enforcement ............................................................................................ 1-8

 Criminal prosecution ....................................................................................................... 1-9

 Civil litigation.................................................................................................................. 1-11

 Customs enforcement ...................................................................................................... 1-13

Chapter 2 U.S.-China IP-Related Trade and Investment ............ 2-1

 The U.S.-China IP-related trade and investment relationship............................................. 2-1

 U.S. economic strength and the importance of innovation............................................. 2-1

 China’s growing manufacturing capacity and IPR infringement ................................... 2-2

 China as a global manufacturing hub......................................................................... 2-2

 China’s transition toward greater innovation............................................................. 2-3

 Growing economic engagement and the IPR challenge................................................. 2-3

 U.S.-China IP-related flows ................................................................................................ 2-5

 Challenges to defining IP-sensitive products ................................................................. 2-5

 Merchandise goods......................................................................................................... 2-6

 Advanced technology products.................................................................................. 2-6

 Trademarked and copyrighted goods......................................................................... 2-9

 Royalties and license fees............................................................................................... 2-11

 Foreign direct investment............................................................................................... 2-12

Chapter 3 Copyright Piracy and Trademark Counterfeiting 

in China ..................................................................................................................... 3-1

 Copyright piracy in China..................................................................................................... 3-1

 Industries affected by piracy ............................................................................................ 3-2

 Where and how piracy occurs .......................................................................................... 3-3
iv

CONTENTS―Continued

Page

Chapter 3 Copyright Piracy and Trademark Counterfeiting 

in China—Continued

 Physical piracy ............................................................................................................. 3-3

 Digital piracy................................................................................................................ 3-4

 Contributors to piracy........................................................................................................ 3-6

 Criminal groups............................................................................................................ 3-6

 Business enterprises ..................................................................................................... 3-7

 Universities and libraries.............................................................................................. 3-7

 Consumers.................................................................................................................... 3-8

 Copyright enforcement overview...................................................................................... 3-8

 Recent trends in copyright enforcement............................................................................ 3-10

 The impact of market access restrictions .......................................................................... 3-12

 Foreign industry strategies for operating in a high-piracy market .................................... 3-13

 Trademark counterfeiting in China....................................................................................... 3-15

 Industries and products subject to counterfeiting.............................................................. 3-16

 Counterfeiting hotspots ..................................................................................................... 3-18

 Identifying counterfeiters .................................................................................................. 3-20

 Counterfeiting methods..................................................................................................... 3-21

 Counterfeit distribution ..................................................................................................... 3-22

 Enforcement ...................................................................................................................... 3-24

 Customs proceedings in China and the United States .................................................. 3-24

 Administrative proceedings in China ........................................................................... 3-25

 Judicial actions in China and the United States............................................................ 3-25

Chapter 4 Patent Infringement and Trade Secret 

 Misappropriation in China ........................................................................... 4-1

 Patent infringement in China ................................................................................................ 4-2

 Recent changes to China’s patent law............................................................................... 4-2

 A patent boom in China .................................................................................................... 4-3

 Industries affected by patent infringement........................................................................ 4-5

 Patent enforcement challenges in China ........................................................................... 4-7

 High-profile patent cases ............................................................................................... 4-8

 Trade secret misappropriation in China................................................................................ 4-9

 Industries affected by trade secret misappropriation......................................................... 4-10

 Potential infringers of trade secrets................................................................................... 4-10

 Trade secret enforcement challenges in China.................................................................. 4-13

 Trade secret enforcement in the United States.................................................................. 4-14
v

CONTENTS―Continued

Page

Chapter 5 China’s Indigenous Innovation Policies ............................ 5-1

 Chinese efforts to foster indigenous innovation.................................................................. 5-2

 Essential elements and themes of the MLP.................................................................... 5-2

 Industries affected by indigenous innovation policies ................................................... 5-4

 Concerns regarding indigenous innovation......................................................................... 5-5

 The “web of indigenous innovation policies” ................................................................ 5-6

 The reported link between indigenous innovation policies and IPR infringement 

 in China ..................................................................................................................... 5-8

 Government procurement policies and indigenous innovation ........................................... 5-8

 National accreditation for indigenous innovation products............................................ 5-9

 Provincial and local accreditation for indigenous innovation products ......................... 5-12

 Technical standards and indigenous innovation.................................................................. 5-12

 The Chinese approach to standards................................................................................ 5-13

 China-specific standards and the ICT sector.................................................................. 5-14

 Promotion of Chinese domestic standards ................................................................. 5-15

 ICT, encryption, and CCC standards ......................................................................... 5-17

 Future competitiveness issues regarding standards.................................................... 5-17

 Patented technology and standards................................................................................. 5-19

 Competition policy/anti-monopoly law............................................................................... 5-20

 Favorable tax rates for high-technology enterprises ........................................................... 5-21

 Other indigenous innovation incentives for Chinese firms ................................................. 5-22

 Opting out of China is not an option for many U.S. firms .................................................. 5-23

Chapter 6 Frameworks for Assessing the Quantitative 

Effects of IPR Infringement and Indigenous Innovation 

 Policies in China on the U.S. Economy ............................................. 6-1

 Strategies for quantification ................................................................................................ 6-1

 Considerations involving surveys .................................................................................. 6-3

 Targeting the right firms and sectors ......................................................................... 6-3

 Nonresponse and self-reporting.................................................................................. 6-4

 Considerations involved in econometric work............................................................... 6-4

 Considerations involved in simulation ........................................................................... 6-5

 How IPR infringement and indigenous innovation policies can affect the U.S. 

 economy ......................................................................................................................... 6-5

 By type of IP or issue area ............................................................................................. 6-5

 Patents and trade secrets............................................................................................. 6-5

 Copyrights .................................................................................................................. 6-6

 Trademarks................................................................................................................. 6-6

 Indigenous innovation ................................................................................................ 6-7

 By market channel.......................................................................................................... 6-7

 Effects in China’s market ........................................................................................ 6-8

 Effects mediated through MNCs ......................................................................... 6-8

 Exports................................................................................................................. 6-9

 Foreign direct investment .................................................................................... 6-10

 License fees, royalties, and other technology payments...................................... 6-10
vi

CONTENTS―Continued

Page

Chapter 6 Frameworks for Assessing the Quantitative 

Effects of IPR Infringement and Indigenous Innovation 

 Policies in China on the U.S. Economy—Continued

 Effects in the U.S. market and in third-country markets............................................ 6-11

 Effects mediated through the parents of U.S. MNCs ............................................. 6-11

 Competition from counterfeit goods ...................................................................... 6-11

 Literature review................................................................................................................ 6-12

 Previous surveys............................................................................................................ 6-12

 Econometric methods .................................................................................................... 6-15

 Estimating the effects of IP policies on international transactions............................. 6-15

 Indices of the quality of IPR regimes......................................................................... 6-15

 Indigenous innovation ................................................................................................... 6-16

 Simulation methods ....................................................................................................... 6-17

Bibliography........................................................................................................................ Biblio-1

Appendices 

A. Request letter............................................................................................................................ A-1

B. Federal Register notice ............................................................................................................ B-1

C. Hearing participants.................................................................................................................. C-1

D. Position of interested parties .................................................................................................... D-1

Boxes 

1.1. Resolution of WTO challenge to certain China IPR measures (DS362)................................ 1-14

3.1. China—Resolution of WTO challenge to certain market access measures in China 

 (DS363)............................................................................................................................... 3-13

4.1. Pharmaceutical sector IPR issues ........................................................................................... 4-7

5.1. Replacing a foreign product with a Chinese product ............................................................. 5-13

Figures 

ES.1 One view of creating Chinese “national champion” companies through indigenous ...........

 innovation policies .......................................................................................................... xxi

1.1. Civil IPR case fillings in China are growing, 2005–09......................................................... 1-11

2.1. The smiling curve and China’s value chain migration through production stages................ 2-4

2.2. U.S. ATP exports to China, 2000–2009 ................................................................................ 2-8

2.3. U.S. ATP imports from China, 2000–2009........................................................................... 2-9

2.4. U.S. ATP imports from China, 2009..................................................................................... 2-9

2.5. China: U.S. direct investment stocks, selected sectors and total, historical-cost .................. 2-13

3.1. Counterfeit manufacturing concentrations in China.............................................................. 3-19

4.1. Foreign inventors focus on invention patents in China, 2005–09 ......................................... 4-4

4.2. Chinese inventors seek all three types of patents in China, 2005–09.................................... 4-4

5.1. One view of creating Chinese “national champion” companies through indigenous ...........

 innovation policies .......................................................................................................... 5-7
vii

CONTENTS―Continued

Page

Tables 

ES.1. Examples of potential IP-sensitive sectors and products..................................................... xv

ES.2. U.S. border seizures of counterfeit and pirated goods from China, FY 2009...................... xvi

ES.3. Categories and features of patents under Chinese law......................................................... xviii

1.1. Categories and features of patents under Chinese law......................................................... 1-6

2.1. Examples of potential IP-sensitive sectors and products..................................................... 2-7

2.2. U.S. border seizures of counterfeit and pirated goods from China, FY 2009...................... 2-10

2.3. U.S. receipts from China and rest of world, royalties and license fees by type of 

 intangible asset, 2004–08 ............................................................................................... 2-11

2.4. China: Research and development expenditures by U.S. affiliates ..................................... 2-14

3.1 Summary of copyright enforcement mechanisms................................................................ 3-9

3.2 Examples of industries and products affected by counterfeiting in China........................... 3-16

5.1. Selected Chinese central government measures regarding government procurement......... 5-10

5.2. Chinese approach to WAPI and TD-SCDMA standards..................................................... 5-16

ix

ACRONYMS 

863 program State High-Tech Development Plan 

AIC Administration for Industry and Commerce 

AML Anti-Monopoly Law 

ANSI American National Standards Institute 

API Active pharmaceutical ingredient 

AQSIQ Administration of Quality Supervision, Inspection, and Quarantine 

ATP Advanced technology products 

ATV All-terrain vehicle 

BASCAP Business Action to Stop Counterfeiting and Piracy 

BEA Bureau of Economic Analysis 

BSA Business Software Alliance 

CATT China Academy of Telecommunications Technology 

CBP Customs and Border Protection 

CC Common Criteria 

CCC China Compulsory Certificate 

CCTV China Central Television 

CD Compact disc 

CDMA Code Division Multiple Access 

CEPR Center for Economic and Policy Research 

CGE Computable General Equilibrium 

CNCA Certification and Accreditation Administration 

CNIS China National Institute of Standardization 

CNR China National Railway Corporation 

CRS Congressional Research Service 

DC Direct current 

DVD Digital video disc 

ECAT Emergency Committee for American Trade 

EU European Union 

E-waste Electronic waste 

FAS Foreign Agricultural Service 

FBI Federal Bureau of Investigation 

FDA Food and Drug Administration 

FDI Foreign direct investment 

FIE Foreign-invested enterprise 

FTZ Free trade zone 

FY Fiscal year 

GAC General Administration of Customs 

GAO Government Accountability Office 

GAPP General Administration of Press and Publications 

GATT General Agreement on Tariffs and Trade 

GDP Gross domestic product 

GFCI Ground fault circuit interrupter 

GIPC Global Intellectual Property Center 

GMAC Graduate Management Admission Council 

GNI Gross national income 

GPA WTO Government Procurement Agreement 

GTAP Global Trade Analysis Project 
x

ACRONYMS—Continued

HNTE High- and New-Technology Enterprises 

IC Integrated circuit 

ICC International Chamber of Commerce 

ICT Information and communication technology 

IDC International Data Corporation 

IEC International Electrotechnical Commission 

IEEE Institute of Electrical and Electronics Engineers 

IIPA International Intellection Property Alliance 

IMF International Monetary Fund 

IP Intellectual property 

IPEC Intellectual Property Enforcement Coordinator 

IPR Intellectual property rights 

ISO International Organization for Standardization 

IT Information technology 

ITIC Information Technology Industry Council 

ITU International Telecommunications Union 

JCCT U.S.-China Joint Commission on Commerce and Trade 

M&A Mergers and acquisitions 

MIIT Ministry of Industry and Information Technology 

Mil-spec Military-specification 

MLP Medium- to Long-Term Plan for the Development of Science and Technology 

MLPS Multilevel Protection Scheme 

MNC Multinational Corporation 

MOE Ministry of Education 

MOF Ministry of Finance 

MOFCOM Ministry of Commerce 

MOST Ministry of Science and Technology 

MP3 Moving picture experts group 1 or 2, Layer 3 audio, digital audio encoded format 

MPAA Motion Picture Association of America 

NAM National Association of Manufacturers 

NBC National Broadcasting Company 

NCAC National Copyright Administration of China 

NDRC National Development and Reform Commission 

NFTC National Foreign Trade Council 

NIPS National Intellectual Property Strategy 

NIST National Institute of Standards and Technology 

OECD Organisation for Economic Co-operation and Development 

OEM Original equipment manufacturer 

OMB Office of Management and Budget 

PC Personal computer 

PSI Pharmaceutical Security Institute 

P2P Peer-to-peer 

R&D Research and development 

RAND Reasonable and nondiscriminatory 

RMB Renminbi 

ROW Rest of the world 

SAC Standardization Administration of China 

SAIC State Administration for Industry and Commerce 

SAR Special Administration Regions 
xi

ACRONYMS—Continued

SASAC State Assets Supervision and Administration Commission 

SAT State Administration of Taxation 

SEC U.S. Securities and Exchange Commission 

SEZ Special Enterprise Zone 

SFC Senate Committee on Finance 

SFDA State Food and Drug Administration 

SIPO State Intellectual Property Office 

SME Small and medium-sized enterprises 

SOE State-owned enterprise 

SVIA Specialty Vehicle Institute of America 

TBT WTO Technical Barriers to Trade Committee 

TCG Trusted Computing Group 

TCM Trusted Cryptography Module 

TD-LTE Time Division Long Term Evolution 

TD-SCDMA Time Division Synchronous Code Division Multiple Access 

TIA Telecommunications Industry Association 

TRIPS Trade-Related Aspects of Intellectual Property Rights 

UAE United Arab Emirates 

UNODC United Nations Office on Drugs and Crime 

USAGE U.S. Applied General Equilibrium model 

USCBC U.S.-China Business Council 

USDA U.S. Department of Agriculture 

USITC U.S. International Trade Commission 

USTR U.S. Trade Representative 

WAPI Wired Authentication and Privacy Infrastructure 

WCDMA Wideband Code Division Multiple Access 

WHO World Health Organization 

WIPO World Intellectual Property Organization 

Wi-Fi Trademark of the Wi-Fi Alliance 

WLAN Wireless Local Area Network 

WTO World Trade Organization 

3G Third generation 

4G Fourth generation 

 xiii 

Executive Summary 

China’s World Trade Organization (WTO) accession in 2001 marked a milestone in the 

country’s integration into the global economy. China has developed into one of the 

world’s most important growth markets, and is now the second-largest U.S. trading 

partner (after Canada). As one important aspect of WTO accession, China committed to 

complying with the requirements of the WTO Trade-Related Aspects of Intellectual 

Property Rights (TRIPS) Agreement, which addresses intellectual property rights (IPR). 

However, IPR infringement in China—including violations of copyrights, trademarks, 

patents, and trade secrets—remains a central concern in the U.S.-China bilateral trade 

relationship. To reach its findings in this report, the Commission has relied on 

information from a wide variety of sources, including industry, government, and 

academia. 

IPR infringement in China reduces market opportunities and undermines the profitability 

of U.S. firms when sales of their products and technologies are undercut by competition 

from illegal, lower-cost imitations. Intellectual property (IP) is often the most valuable 

asset that a company holds, but many companies, particularly small ones, lack the 

resources and expertise necessary to protect their property in China. China’s “indigenous 

innovation” policies, which promote the development, commercialization, and purchase 

of Chinese products and technologies, may also be disadvantaging U.S. and other foreign 

firms and creating new barriers to foreign direct investment (FDI) and exports to China. 

This is the first of two reports requested by the U.S. Senate Committee on Finance 

(Committee) on the effects of IPR infringement and indigenous innovation policies in 

China on U.S. jobs and the U.S. economy. In this report, the Committee asked the U.S. 

International Trade Commission (Commission or USITC) to describe the principal types 

of reported IPR infringement in China, describe Chinese indigenous innovation policies, 

and outline an analytic framework for determining the effects of both IPR infringement 

and indigenous innovation policies on the U.S. economy and U.S. jobs. Major findings 

are summarized below. The second report will describe the size and scope of reported 

IPR violations in China and provide, to the extent possible, a quantitative analysis of the 

effect of reported IPR infringement and indigenous innovation policies in China on the 

U.S. economy and jobs. The second report is due May 2, 2011. 

Major Findings 

Enforcement of IPR laws remains a serious problem in China. Significant structural 

and institutional impediments undermine effective IPR enforcement in China. These 

include a lack of coordination among government agencies, insufficient resources for 

enforcement, local protectionism, and a lack of judicial independence. Administrative 

IPR enforcement, consisting of raids and seizure of infringing goods, generally results 

only in temporary slowdowns in production; penalties are not sufficient to deter repeat 

offenders. Criminal prosecutions, which could have a deterrent effect, are rare. There are 

also difficulties in prosecuting civil IPR cases, including relatively low damage awards, 

the lack of a robust system for discovery of evidence, sporadic application of contempt 

citations for uncooperative or dishonest defendants, an inexperienced judiciary, and 

onerous requirements for the use of evidence from abroad. However, there are some signs 
 xiv 

of improvement in IPR enforcement, especially with respect to courts in major cities in 

China. 

Ineffective enforcement contributes to widespread IPR infringement in China. The 

illegal distribution of copyrighted works is common, both physically, for goods such as 

CDs and DVDs, and, increasingly, through digital means, such as Internet downloads of 

software, music, and movies. For example, about 240,000 Internet cafés in China 

reportedly rely on illegal copies of entertainment software. Similarly, trademarks for 

goods and services of all kinds are routinely counterfeited; from luxury goods to highvolume commodities, few products are immune from illegal imitation in China. The 

patents and trade secrets of U.S. firms are also infringed in China, although concrete 

information on this topic is more difficult to obtain. 

China is implementing indigenous innovation policies that U.S. and foreign firms 

view as potentially reducing business opportunities in China’s fast-growing 

economy. These policies—often embedded in government procurement, technical 

standards, anti-monopoly, and tax regulations or laws—aim to achieve several long-term 

goals. These goals include building domestic research and development (R&D) 

capabilities to facilitate Chinese firms’ innovative capacity, limiting dependence on 

foreign technology and companies, and generally increasing the value that domestic 

companies add to China’s economy. The indigenous innovation “web of policies” is 

expected to make it difficult for foreign companies to compete on a level playing field in 

China. 

U.S.-China IP-Related Trade and Investment 

IP creation and technological innovation drive economic growth. They also increase 

the competitiveness of firms, through the creation of new or improved products and 

processes, greater efficiencies, and enhanced returns on capital goods investment. 

Measures of IP’s contribution to the U.S. economy suggest that IP-sensitive industries 

outperform non-IP-sensitive industries on a variety of economic measures, including 

sales, output, exports, wages, and capital expenditures. For example, IP-sensitive 

industries reportedly pay their employees nearly 60 percent more, and output and sales 

per employee are more than double those of non-IP-sensitive industries. 

IP-sensitive products and services span a broad range of sectors. They range from 

technology-intensive products, such as computers and semiconductors, to the creative arts 

(e.g., books and films), and branded products (e.g., apparel and footwear). IP-sensitive 

services include such intangible assets as the design of manufacturing processes and the 

brands that franchisees rely upon to sell their services. Table ES.1 provides examples of 

IP-sensitive sectors and products. 

The effect of IPR infringement in China on the U.S. economy should be viewed in 

the context of the significant trade and investment relationship that links the United 

States, one of the world’s most innovative countries, and China, a globally dynamic 

manufacturing base. During the past decade, China’s economy grew by roughly 

10 percent per year, and many Chinese firms are attempting to strengthen their 

competitive position by moving to more profitable stages of production. Much of the 

increase in China’s sophisticated manufacturing capacity has been made possible by IPsensitive technology provided by foreign investors from advanced industrial countries, 
 xv 

including the United States. For example, total U.S. FDI stock in China increased from 

$9.4 billion in 1999 to $49 billion in 2009. Despite certain benefits that multinationals 

might gain from producing in China, they also face an array of IPR infringement 

problems in their supply chain operations. These include increasing competition from 

Chinese counterfeiters who use sophisticated manufacturing capabilities and cheaper 

prices to gain market share in China and external markets. 

Bilateral trade and investment in IP-sensitive sectors are difficult to measure 

because of the complexity and scope of IP in traded goods and services; however, 

some metrics provide insights. There are three primary channels by which IP-sensitive 

goods and services flow between the United States and China: merchandise trade, royalty 

and license fee services, and FDI. Merchandise trade in advanced technology products 

(ATP), which serves as a proxy for high-tech, IP-sensitive products, expanded rapidly 

during 2000–09. U.S. ATP exports to China, which doubled in value during the period to 

$17 billion in 2009, were concentrated in aircraft and parts, electronics products 

(including semiconductors), and computers. U.S. ATP imports from China increased 

nearly eightfold, to $90 billion, with computers and cellular phones accounting for 90 

percent of such imports. However, ATP categories cover only leading-edge technologies, 

so this proxy does not fully capture the broader scope of IP-sensitive high-technology 

trade or trademarked and copyrighted goods. 

TABLE ES.1 Examples of potential IP-sensitive sectors and products

Sector/product 

Aerospace product and parts manufacturing 

Apparel manufacturing 

Breweries, wineries, and distilleries 

Computer and electronic product manufacturing 

Computer systems design and related services 

Electrical equipment, appliance, and component manufacturing 

Footwear manufacturing and other leather products 

Game, toy, and children's vehicle manufacturing 

Internet publishing and broadcasting and Web search portals 

Jewelry and silverware manufacturing 

Machinery manufacturing 

Medical equipment and supplies manufacturing 

Motion picture and video industries 

Motor vehicle equipment manufacturing 

Newspaper, periodical, book, and directory publishing 

Chemical manufacturing 

Pesticide, fertilizer, and other agricultural chemical manufacturing 

Pharmaceutical and medicine manufacturing 

Research and development 

Semiconductor and other electronic component manufacturing 

Software publishing 

Sound recording industries 

Television broadcasting 

Tobacco manufacturing 

Watch, clock, and part manufacturing 

Source: Compiled by USITC staff from industry and academic sources. 

Note: Sectors and products correspond to NAICS classifications. 
 xvi 

U.S. Customs and Border Protection (CBP) seizure data provide insight into U.S. 

imports of certain trademark-infringing goods from China. According to CBP, China 

was the source of 79 percent of all U.S. Customs seizures in FY 2009, and Hong Kong 

was the source of an additional 10 percent. As in previous years, footwear and apparel 

together accounted for the bulk of seizures (table ES.2). However, Customs data 

underrepresent the degree of IPR infringement, in part because trademarks generally must 

be recorded with CBP to be enforceable at the border, and most trademark owners do not 

take this step. Only about 26,000 of 1.6 million active trademarks in the United States 

have been recorded with CBP. Moreover, most CBP seizures are of products that are 

easily identifiable; many infringing products are more difficult to distinguish. 

TABLE ES.2 U.S. border seizures of counterfeit and pirated goods from China, FY 2009

Commodity Domestic value 

(Million $)

% of total

Footwear 98.0 48

Handbags/wallets/backpacks 19.6 10

Consumer electronics 18.5 9

Wearing apparel 17.9 9

Computers/hardware 8.8 4

Jewelry 7.3 4

Pharmaceuticals 6.7 3

Media 5.5 3

Watches/parts 4.9 2

Toys/electronics games 4.5 2

All other commodities 13.1 6

 Total 204.7 100

Source: U.S. Customs and Border Protection. 

Relatively limited U.S. receipts of royalties and license fees from IP-sensitive 

services exports to China suggest IPR infringement and market access problems.

U.S. companies receive these payments, primarily from affiliated businesses in China, on 

such intangible assets as industrial processes; books, records, and tapes; broadcasting 

services; and computer software. Stronger IP protection generally is associated with 

larger flows of such payments. U.S. receipts of these payments from China were over 

$2.3 billion in 2008—a small figure compared with the $89 billion in U.S. receipts from 

the rest of the world (ROW). Notably, 2008 receipts of $2 million from China for certain 

copyrighted materials were a fraction of the $1.5 billion in such receipts from the ROW. 

This disparity likely reflects IPR infringement and market access restrictions in China.

FDI is another channel by which U.S. companies transfer IP to China. Weak IPR 

protection in China reportedly depresses the level of U.S. FDI in China. Even though the 

stock of U.S. investment in China has been increasing in recent years, it was a small 

share (1.4 percent) of the total stock of outbound U.S. investment in 2009. 
 xvii 

Copyright and Trademark Infringement in China 

The copyright industries (including music, movies, software, and publishing) 

produce both physical and digital goods, and both forms are subject to substantial 

infringement in China. Unauthorized transfer of copyrighted materials may occur 

through the use of physical media, such as a CD or DVD, or it may occur entirely online, 

through the electronic transfer of files. The growth of digital piracy is an increasing 

concern for copyright-intensive industries. Infringing products that are distributed 

digitally can quickly reach consumers in markets around the world, since they are 

produced and consumed through decentralized global networks. Enforcement against 

digital piracy is particularly challenging for smaller firms that do not maintain a physical 

presence in China. As China’s population of Internet users has grown, both foreign and 

Chinese copyright holders have become increasingly concerned about digital 

infringement, and there have been some notable cases of strong copyright enforcement. 

Shenzhen and Guangzhou are production and distribution hubs for copyrightinfringing products. Organized, large-scale production and distribution of infringing 

optical discs and other media is especially common in the southern cities of Guangzhou 

and Shenzhen, which have been targeted by Chinese authorities as major sources of 

infringing materials. Industry sources also identify these cities as being among those most 

important in the illegal distribution of video game systems, which are banned in China 

yet are widely used there to play copyright-infringing video games. 

Copyright infringement in China is closely linked to government delays and bans of 

copyrighted works because limited supply shifts demand to pirated versions. For 

example, in China, films, publications, music, and home entertainment products must be 

reviewed for prohibited content before being released. In some copyright-intensive 

industries, a foreign company must have a Chinese partner to distribute content. 

Moreover, certain distribution channels (such as online music distribution) are 

completely closed to foreign companies. For content that is delayed or never released 

through legal channels, the market may only be served by pirated copies. Several of these 

distribution restrictions have been found by the WTO to be inconsistent with China’s 

WTO commitments. 

Many U.S. companies doing business in China consider trademark counterfeiting to 

be one of their most serious problems. The effects of counterfeiting on trademark 

owners include lost sales and revenue, tarnished brand reputation, and substantial 

enforcement costs. The overriding concern for legitimate brand owners is that their 

products are effectively priced out of markets in China and other countries by low-cost 

imitations. Counterfeiters in China reportedly vary widely in size and sophistication, 

ranging from mom-and-pop operations to former or even current joint venture partners, 

large private and state-owned enterprises, and organized crime syndicates. 

The counterfeiting problem can be particularly difficult for smaller firms because 

they have a smaller volume of sales over which to spread enforcement costs and 

often lack the experience and resources necessary to address counterfeiting in 

China. Smaller firms often know little about how to resolve IPR infringement problems 

in China, are skeptical about the effectiveness of pursuing a resolution, and are concerned 

about potentially high costs. 
 xviii 

Counterfeiting is concentrated in the industrialized southeastern region, 

particularly the provinces of Guangdong and Fujian. FDI inflows to these provinces 

in recent decades have contributed significantly to this problem. As foreign companies 

built factories, transferred production technology, and trained employees, manufacturing 

know-how and processes migrated to counterfeit establishments in this region. The 

Internet also plays a central role in the purchase and sale of counterfeit goods. 

E-commerce and auction sites originating in China facilitate the shipment of smaller and 

less detectable quantities of counterfeit goods around the world. 

Patent Infringement and Trade Secret Misappropriation in China 

U.S. and foreign firms in China rely on patents to protect inventions in a broad 

range of industries, including pharmaceuticals, telecommunications, electronics, 

chemicals, footwear, food and beverages, and construction and fixtures. Industry 

representatives express mixed opinions on whether there is antiforeign bias in the 

issuance or enforcement of patents in China. However, some non-Chinese firms 

reportedly find it more difficult to obtain patents in sectors that the Chinese government 

considers of strategic importance, such as pharmaceuticals, renewable energy, and 

biotechnology. 

The Chinese government’s focus on indigenous innovation has spurred a boom in 

patenting by Chinese inventors. Although filings of all types of patents in China are on 

the rise, Chinese inventors particularly focus on utility model and design patents, while 

U.S. and other foreign inventors almost completely ignore such patents (table ES.3). 

Utility model and design patents are inexpensive and easy to obtain, as they are not 

substantively examined by patent examiners. Once a Chinese company has received such 

a patent, it can bring suit against foreign companies that manufacture similar goods in 

China or export them to China, or use the patent to defend against infringement 

allegations. Some utility model patents obtained by Chinese firms are alleged to be 

opportunistic and predatory. 

TABLE ES.3 Categories and features of patents under Chinese law 

 Invention Utility model Design 

Subject matter New technical solution 

relating to a product, 

process, or improvement 

thereof 

New technical solution 

relating to the shape, the 

structure, or their 

combination, of a product 

which is fit for practical use 

New design relating to the 

shape, pattern, color, or 

their combination, of a 

product which creates an 

aesthetic feeling and is fit 

for industrial application 

Patent term 20 years 10 years 10 years 

Examination Substantive Nonsubstantive Nonsubstantive 

Patents granted and 

domestic and foreign 

ownership (2009) 

Total grants: 15,640 

Domestic: 54% 

Foreign: 46% 

Total grants: 32,382 

Domestic: 99% 

Foreign: 1% 

Total grants: 41,000 

Domestic: 94% 

Foreign: 6% 

Sources: U.S. Embassy, Beijing, and State Intellectual Property Office (SIPO). 
 xix 

Weaknesses in the Chinese judicial system can be particularly challenging in 

complex patent infringement cases. The lack of a robust discovery system, for example, 

means that patents covering production methods are difficult to enforce because 

defendants cannot be compelled to disclose how their products are made. 

Industry representatives have identified factors that affect against whom and where 

a foreign firm brings suit for patent infringement in China. These factors include the 

possibility of bias in favor of large state-owned enterprises (SOEs) or local firms, as well 

as the substantial risk of noncompliance with court judgments in cases brought against 

small firms. Although suing a defendant in the jurisdiction where it is located can be 

problematic because of the role that favoritism may play, choosing a different jurisdiction 

may increase the difficulty of actually enforcing the judgment. 

U.S. firms employ a variety of non-litigation strategies to protect their technologies 

in China. Some U.S. firms rely to a greater degree on trade secrets or reportedly avoid 

developing or producing their most critical innovations in China, instead placing these 

“crown jewels” in locations with more effective enforcement. Other firms, particularly in 

industries where the capital costs of production are substantial and where product 

lifetimes are short, strive to stay one step ahead of infringing competitors through rapid 

innovation. 

Information about the protection and enforcement of trade secrets in China is 

harder to obtain than that for patents and trademarks. Trade secret owners do not 

register their trade secrets with administrative agencies, but protect secrets through 

internal measures. However, the misappropriation of trade secrets may be addressed 

through administrative and judicial actions. Reportedly, the judicial preference in China 

for written evidence rather than witness testimony can make it difficult to establish the 

elements of a trade secret case. 

Trade secret misappropriation in China reportedly is carried out by employees, 

business partners, computer hackers, and regulatory agencies. Employees may steal 

company secrets and take them to competitive ventures. Problems also arise when 

companies that are setting up new production facilities in China are required to partner 

with a Chinese design firm; some design firms reportedly have no qualms about 

disclosing trade secrets learned in the process. The misappropriation of trade secrets 

through computer hacking originating in China is an area of growing concern to firms in 

the United States and throughout the world. Trade secrets may also be leaked from data 

provided to regulatory authorities in certain industries such as pharmaceuticals, medical 

devices, plant varieties, and software. Some software encryption companies have been 

required to disclose their trade secret source code in order to obtain the China 

Compulsory Certification (CCC) approval needed to market their products in China. 

U.S. courts have addressed the alleged misappropriation of trade secrets for the 

benefit of Chinese companies. The U.S. Department of Justice, for example, has 

prosecuted cases involving the theft of trade secrets related to the manufacture of auto 

parts, paints, and light-emitting diodes. The cases have resulted in substantial fines and 

imprisonment. 
 xx 

Indigenous Innovation and Standards Policies in China 

The Chinese government is using policies in wide-ranging areas, including 

government procurement, technical standards, anti-monopoly policy, and tax policy, 

to raise the level of domestic innovation. However this effort may lead to a “web of 

policies” that will make it more difficult for foreign companies to compete in China.

Industry representatives have voiced concerns that an integrated web of Chinese policies 

works together to build a small number of SOEs into “national champions,” which China 

intends to become large and technologically-advanced enough to compete globally with 

today’s high-tech market-leaders (figure ES.1). The policies at issue are evolving very 

quickly, and future effects remain uncertain. 

The government procurement area is reported to represent the clearest 

manifestation to date of China’s use of indigenous innovation policies to favor 

Chinese companies and the products of Chinese innovation at the expense of foreign 

companies. Many observers agree that the Chinese government is actively using 

government procurement contracts to create a market for the products of Chinese 

companies and to foster a general acceptance of Chinese brands over foreign brands. The 

Chinese government is expected to release a central government catalogue of indigenous 

innovation-accredited products. Observers anticipate that it will include few products 

made by foreign firms, as is true for catalogues already in effect in certain provinces. 

However, in several recent policy speeches, leading Chinese government officials have 

indicated that goods produced by Chinese affiliates of U.S. and other foreign firms will 

be considered indigenous innovation products. Thus, it remains to be seen how the policy 

will be implemented. 

As part of the push for indigenous innovation, China has developed national 

standards specifically to compete with existing international standards, and, in some 

instances, has mandated the use of the new standards in Chinese markets. These 

standards act as market access barriers and force foreign companies to adopt Chinese 

technologies to conduct business in China. 

According to standards experts, although China has made significant progress in 

improving its standard-setting processes, procedures can still be nontransparent 

and often continue to exclude meaningful opportunities for foreign companies to 

participate. Standards development in China occurs through a top-down system, and 

U.S. and other foreign firms are often entirely excluded from the process or are permitted 

to participate only as observers. This is in contrast to the U.S. approach to standards 

development in which the private sector tends to lead, with more limited government 

involvement. 

U.S. firms argue that the Chinese standards-setting process often results in technical 

standards aimed at supporting the interests of domestic firms, rather than 

incorporating the best technology into new products. In particular, Chinese national 

standards are often developed for the purpose of including Chinese-developed IP in those 

standards. This practice reduces the royalties that Chinese firms must pay to foreign firms 

whose technology often forms a critical component of the global standard, while 

increasing royalties that foreign firms must pay to Chinese IP holders. 
 xxi 

FIGURE ES.1 One view of creating Chinese “national champion” companies through indigenous 

innovation policies 

Source: Industry and academic representatives.
 xxii 

Frameworks for Quantifying the Effects of IPR Infringement and Indigenous 

Innovation in China on the U.S. Economy 

The Commission is examining a variety of approaches for use in its second 

investigation to assess the quantitative effects of IPR infringement and indigenous 

innovation policy in China on the U.S. economy and U.S. jobs. The Commission is in 

the process of surveying U.S. firms and sectors that may be affected by China’s IPR 

infringement and indigenous innovation policies. The results will be supplemented by 

econometric analyses, either derived from the available literature or conducted 

specifically for the second investigation. In addition, insights into economy-wide and 

sectoral effects can be gained by simulating the effects of improved IPR enforcement in 

China on the U.S. economy. The results gained from the questionnaire responses, 

econometric methods, and simulations should inform and serve as cross-checks on each 

other while providing a more comprehensive assessment of the effects on the U.S. 

economy of IPR infringement in China. 

The questions analyzed in the second investigation will involve novel areas of 

research and quantification, and the Commission’s approach, as proposed in this 

report, will likely evolve as issues are identified. Moreover, in the case of indigenous 

innovation policies that are of recent origin and rapidly evolving, quantitative methods 

may provide partial assessments of the effects of such policies on the U.S. economy or 

U.S. firms rather than definitive or complete ones. 

The effects of IPR infringement and indigenous innovation policies vary according 

to the type of IP and the market channel involved. Patents, trade secrets, trademarks, 

and copyrights have different economic rationales, and their infringement affects IP 

owners and consumers in different ways. The wide variety of Chinese policies covered 

under the term “indigenous innovation” may act as a mechanism for import substitution 

in technology by favoring Chinese firms in relevant industries while reducing access to 

the Chinese market for foreign firms. 

While econometric methods and survey methods have been used in previous studies 

that attempted to quantify the economic effects of IPR infringement, few studies 

have estimated the effects on the U.S. economy and jobs. The econometric literature 

indicates that countries with stronger IPR enforcement pay more in royalties and license 

fees to foreigners and attract more FDI. The United States generally exports more to 

countries with stronger IPR enforcement, although this is not true for all products 

equally. Previous econometric work also has made use of a variety of measures of the 

quality of a country’s IPR environment. Some of these studies have focused on existing 

legal provisions, while others have attempted to capture the degree of enforcement. A 

variety of surveys have been used to quantify the effects of IPR infringement, although 

the surveys have significant limitations. Finally, relatively little work has been carried out 

to assess the effects of IPR infringement using the types of simulation methods, such as 

computable general equilibrium models, often used to estimate economy-wide effects of 

changes in trade policies. 
1-1 

CHAPTER 1 

Introduction 

China’s World Trade Organization (WTO) accession in 2001 marked a milestone in the 

country’s integration in the global economy. China has developed into one of the world’s 

most important growth markets and is now the second-largest U.S. trading partner (after 

Canada). 1

 With a population of more than 1.3 billion people, China is an important 

source of economic opportunity for U.S. farmers, manufacturers, service providers, and 

their employees. There are, however, ongoing areas of concern in the bilateral economic 

relationship, including intellectual property rights (IPR) infringement and “indigenous 

innovation” policies in China. IPR infringement in China reduces market opportunities 

and undermines the profitability of U.S. firms in China, the United States, and third 

countries, where their products and technologies are undercut by low-cost imitations.2

Indigenous innovation policies may disadvantage U.S. firms by favoring Chinese 

products and technologies over those of foreign companies, creating new barriers to U.S. 

foreign direct investment (FDI) and exports to China.3

 

“Intellectual property” (IP)4

 is a broad term that encompasses creations of the mind such 

as literary and artistic works (protected by copyrights), symbols and names used in 

commerce (trademarks), inventions (patents), and confidential business information 

developed by firms (trade secrets).5

 The value of IP and other intangible assets to the 

U.S. economy is substantial. According to a 2006 Federal Reserve Board analysis, 

investment in intangible assets in the United States—which includes IP, research and 

development (R&D), computer software, workforce training, and corporate spending to 

enhance brands—exceeds investment in tangible property.6

 Moreover, these intangible 

assets increasingly drive the competitiveness of U.S. firms and opportunities for U.S.

7 orkers.

rely on IP are major sources of economic growth and are among the largest and best-

 

w

IP and other intangible assets drive competitiveness in various ways, including by 

enabling the creation of new products and processes and improving the quality of existing 

products; enhancing returns on investment in capital goods, such as computers and 

telecommunications equipment; and promoting efficiency by generating better ways of 

doing business. 8 Several industry-sponsored studies have specifically measured the 

contribution of IP to the U.S. economy and jobs. A 2005 study found that industries that 

1

 U.S. Census Bureau, Foreign Trade Statistics, “Top Trading Partners,” n.d. (accessed August 27, 2010). 2

 See chapters 3, 4, and 6. 

3

 See chapters 5 and 6. See also Geithner, Statement to the Senate Banking and House Ways and Means 

Committees, September 16, 2010, 4; Kirk, Statement to the Senate Finance Committee, June 23, 2010; Locke, 

Statement to the Senate Finance Committee, June 23, 2010. 4

 IP and IPR are used interchangeably in this report (and in common parlance), although generally IP 

refers to the property itself and IPR to the rights associated with the property. 5

 World Intellectual Property Organization (WIPO), “What Is Intellectual Property?” n.d. (accessed 

August 5, 2010). 6

 Board on Science, Technology, and Economic Policy and Committee on National Statistics, Intangible 

Assets, 2009, 1. 7

 Ibid. 

8

 U.S. Department of Commerce (USDOC), “Patent Reform: Unleashing Innovation,” April 2010. 
1-2 

paying employers in the United States.9 More recently, a 2010 study found that from 

2000 through 2007, IP-intensive industries outperformed non-IP-intensive industries on a 

variety of economic measures, including sales, output, exports, wages, and capital 

expenditures.10 

Given the substantial contribution of IP to the U.S. economy, and the importance of 

China as a market, IPR infringement in China can negatively affect U.S. firms of all 

sizes. Small and medium-sized enterprises (SMEs) may be especially vulnerable to IPR 

infringement in China for at least two reasons: first, IP may be their most valuable asset; 

and second, they may lack the resources and expertise necessary to protect their IP and 

respond to infringement in China.11 

China’s indigenous innovation policies are also an important competitive issue for U.S. 

firms. China has introduced a number of policies aimed at increasing the level of 

scientific and technological innovation that originates within the country, as well as 

increasing the domestic share of the value embodied in goods made by Chinese 

companies. In a nutshell, China would like to shift from “made in China” to “created in 

China.”12 Policy arenas through which China is implementing indigenous innovationrelated policies include government procurement, technical standards, and the 

enforcement of China’s Anti-Monopoly Law (AML). U.S. firms are concerned that the 

policies may preclude their full participation in business opportunities arising from the 

fast-growing Chinese economy.13

Scope and Approach 

This is the first of two reports requested by the U.S. Senate Committee on Finance 

(Committee) on the effects of IPR infringement and indigenous innovation policies in 

China14 on U.S. jobs and the U.S. economy.15 In this report, the U.S. International Trade 

Commission (Commission or USITC) has been asked to describe the principal types of 

reported IPR infringement in China, to describe Chinese indigenous innovation policies, 

and to outline an analytic framework for determining the effects of both IPR infringement 

and indigenous innovation policies on the U.S. economy and U.S. jobs. This first report 

provides the framework for the second, which will describe the size and scope of reported 

 9

 Siwek, “Engines of Growth,” 2005, 3. Siwek defines IP industries as including those sectors of the 

economy that depend on copyright or patent protections to function as viable commercial industries, and a 

portion of the distribution services industries needed for the physical and commercial delivery of IP products 

throughout the United States. The identification of U.S. industries that rely on IP is complex (see chapter 2). 10 Pham, “The Impact of Innovation,” 2010, 4. Wages, for example, are reportedly 60 percent higher in 

IP-intensive industries. Pham uses R&D expenditures as a proxy for reliance on IP. Industries with R&D 

expenditures higher than the national average are identified as IP-intensive. 11 D’Addario, written testimony to the U.S. International Trade Commission (USITC), June 16, 2010, 3; 

NAM, written testimony to the USITC, June 15, 2010, 4; USITC, Small and Medium-Sized Enterprises, 

July 2010, 3–15; Barfield and Calfee, Biotechnology and the Patent System, 2007, 27. 12 Industry officials, interviews by USITC staff, Shanghai, September 15, 2010. 13 See chapter 5. 

14 For purposes of this report, “China” refers to mainland China and does not include Hong Kong or 

Macau. Hong Kong and Macau are special administrative regions (SARs), which operate under autonomous 

systems of government and constitutions. U.S. State Department, “Background Note: Hong Kong,” August 3, 

2010; U.S. State Department, “Background Note: Macau,” July 26, 2010. They are included in this report 

only to the extent that firms or individuals from Hong Kong or Macau may play a role in IPR infringement in 

mainland China. See chapter 3. 15 App. A. 
1-3 

IPR violations in China and provide, to the extent possible, a quantitative analysis of the 

effect of reported IPR infringement and indigenous innovation policies in China on the 

U.S. economy and jobs. The second report will be provided to the Committee by May 2, 

2011. 

The information and data in this first report were gathered from a wide variety of sources. 

The Commission held a public hearing for both reports on June 15–16, 2010. Witnesses 

during the two-day hearing included representatives of companies and trade associations 

located in the United States and China, as well as individuals with significant U.S. 

government, nonprofit, and academic experience. A diverse group of trade associations, 

law firms, think tanks, and companies also provided written submissions. Through more 

than 60 in-person and telephone interviews conducted in the United States and in travel to 

China, the Commission obtained information from additional companies, associations, 

academics, standards bodies, and other experts in the field. 

Commission staff also consulted with U.S. government officials to gain insight from their 

expertise in Chinese IPR and indigenous innovation issues, including representatives of 

the Department of Commerce’s International Trade Administration, the U.S. Patent and 

Trademark Office (USPTO), U.S. Customs and Border Protection (CBP), the Office of 

the U.S. Trade Representative (USTR), the National Institute of Standards and 

Technology, the Federal Trade Commission, the U.S. Department of Justice, and the U.S. 

embassy and consulates in China. Commission staff also reviewed published information 

on China’s IPR and indigenous innovation policies and practices, including submissions 

made as part of the USTR’s Special 301 review of the global state of IPR protection and 

submissions to the Intellectual Property Enforcement Coordinator (IPEC). 16 The 

Commission’s review of data and information was complicated by the speed with which 

China’s indigenous innovation and IPR policies are evolving, with new interpretations 

and policies issued frequently. The report includes published data and information 

available through September 2010. 

Organization 

This report is divided into six chapters. Chapter 1 provides definitions of key concepts 

and an overview of China’s IPR enforcement structure. Chapter 2 describes the role of IP 

in the bilateral trade and investment relationship, focusing on three channels through 

which IP-sensitive goods and services flow between the United States and China: 

international trade, royalty and license fee services trade, and FDI. Chapter 3 describes 

reported copyright and trademark infringement in China, including affected industries 

and products, locations where piracy and counterfeiting are prevalent, the persons or 

groups involved, the methods by which the infringement may be carried out, and 

enforcement challenges. Chapter 4 provides similar information for patent infringement 

and trade secret misappropriation. Chapter 5 defines and describes major elements of 

China’s indigenous innovation policies in the areas of government procurement, 

standards, and the enforcement of China’s AML, among others. Chapter 6 outlines 

analytic frameworks potentially useful in determining the quantitative effects of IPR 

infringement and indigenous innovation policies in China on the U.S. economy. 

 16 The office of the IPEC was created by Congress in the Prioritizing Resources and Organization for 

Intellectual Property Act of 2008 and is located within the Executive Office of the President, Office of 

Management and Budget. OMB, “About the Office of the IPEC,” n.d. 
1-4 

Key Concepts: IPR and Indigenous Innovation in China 

This section describes two key concepts in this investigation: IPR and indigenous 

innovation. With regard to IPR, the WTO Uruguay Round Agreements signed in 1994 

included the Agreement on Trade-Related Aspects of Intellectual Property Rights 

(TRIPS), and established comprehensive standards for IPR protection and enforcement in 

WTO member countries. China joined the WTO in December 2001 and assumed the 

obligations set forth in TRIPS.17 It is important to recognize, however, that although 

TRIPS establishes standards for IPR protection and enforcement, the rights are granted 

and enforceable on a national basis.18 For example, to receive patent protection in China, 

an inventor must satisfy the patent requirements contained in Chinese law, and a patent 

must be granted by Chinese authorities.19

The four principal types of IP reportedly infringed in China are copyrights, trademarks, 

patents, and trade secrets, according to the Commission’s research and fieldwork.20 The 

following definitions are based on Chinese law as generally described in the IPR toolkit 

prepared by the U.S. Embassy, Beijing.21 An explanation of the concept of indigenous 

innovation follows the IPR definitions. 

Copyrights

Copyrights generally encourage creative endeavors by prohibiting original works from 

being copied without the author’s permission. China’s Copyright Law protects a range of 

works, including written, oral, photographic, and dramatic works; fine art and 

architectural works; movies; graphic designs; and computer software. Under Chinese law, 

the copyright owner holds a broad set of exclusive rights, including the right to 

reproduce, distribute, perform, and adapt the work for a period of up to 50 years for 

corporate authors, or the life of the author plus 50 years for individual authors. 22

Copyright infringement, which may occur when any of the exclusive rights of the owner 

are violated, is sometimes referred to as copyright piracy. Copyrights do not have to be 

registered to be entitled to protection, although registration can facilitate enforcement.23 

 17 See Final Act Embodying the Uruguay Round of Multilateral Trade Negotiations, Marrakesh, April 13, 

1994, Annex 1C, 319, as reprinted by the U.S. Government Printing Office, 1994; Uruguay Round 

Agreements Act, Statement of Administrative Action, House Document 103-316, 103rd Cong., 2d Sess. 

(1994), 312, as printed by the U.S. Government Printing Office, 1994. 18 U.S. Embassy, Beijing, “Intellectual Property Rights in China,” n.d. (accessed August 5, 2010). 19 Ibid. 

20 See also Congressional Research Service, “Intellectual Property Rights,” February 5, 2009, 1–3; 

StopFakes.gov, “Intellectual Property: What Is It?” n.d. (accessed August 5, 2010); U.S. Embassy, Beijing, 

“Intellectual Property Rights in China,” n.d. (accessed August 5, 2010). All these identify copyrights, 

trademarks, patents, and trade secrets as the major types of IPR. While other sui generis types of IPR covered 

by TRIPS obligations, such as plant variety protections and semiconductor design protection, may also be 

infringed in China, the Commission received little specific information with respect to them. 21 U.S. Embassy, Beijing, “Intellectual Property Rights in China,” n.d. (accessed August 5, 2010). 22 Copyright terms are longer in the United States. For works created after 1978, protection lasts for the 

life of the author plus 70 years or for works made for hire, 95 years from first publication or 120 years from 

creation (whichever comes first). 17 USC Sec. 302. 23 U.S. Embassy, Beijing, “Intellectual Property Rights in China,” n.d. (accessed August 5, 2010); 

industry official, telephone interview by USITC staff, August 30, 2010; Maskus, Intellectual Property Rights, 

2000, 45. 
1-5 

 

Trademarks 

Trademarks generally protect the right to use a distinctive mark or name to identify and 

distinguish a product, service, or firm. In China, trademark registration is available for 

words, designs, letters, numbers, three-dimensional signs, and color combinations, as 

well as combinations of these elements. Trademark registration is also available in China 

for certification or collective marks, which may be used to protect geographical 

indications (e.g., Idaho potatoes).24 

Under Chinese law, a mark is eligible for registration if it is distinctive, easily 

distinguishable, does not conflict with prior rights obtained by a third party, and is not 

otherwise prohibited by China’s Trademark Law. Registration is generally required for 

effective protection of a trademark in China. While the United States grants trademark 

rights to the first party to use a trademark in commerce, China follows a first-to-file 

system, with no requirement that the filing party demonstrate prior use or ownership of 

the mark. Thus, a U.S. mark that is not registered with the China Trademark Office may 

be usurped by someone who files first but does not have an existing commercial interest 

in the mark.25 

The violation of a trademark is generally referred to as infringement or counterfeiting. 

Under Chinese law, violations may involve: 

 Using a trademark that is the same as or similar to a registered mark 

 on the same or similar goods without authorization; 

 Selling products that violate the exclusive right to use a registered 

 mark; 

 Counterfeiting or modifying a mark or a symbol that is part of a 

 registered mark and putting products on the market with the 

 counterfeited or modified mark; and 

 Using words, graphics, or packaging that are identical or similar to 

 those of a registered mark in connection with identical or similar 

 goods in order to mislead others. 26 

As in the United States, a registered trademark in China is valid for 10 years but, unlike a 

copyright, may be renewed indefinitely if it is being used in commerce.27 

24 In China, a certification mark is one controlled by an organization capable of monitoring the use of the 

mark to certify the geographical origin, material, mode of manufacture, quality, or other specific 

characteristics of the goods or services. A collective mark is one registered in the name of a group for use by 

the members of the group to indicate their membership. U.S. Embassy, Beijing, “Intellectual Property Rights 

in China: Trademark,” n.d. (accessed August 5, 2010). 25 For this reason, trademark experts recommend that companies seeking to distribute their products in 

China register their marks (including Chinese-language versions of their marks) and promptly register 

appropriate Internet domain names. Unregistered marks may be entitled to protection if the owner can 

establish that they are “well-known.” However, only a small number of foreign marks have been so 

recognized (15 well-known foreign marks were certified in 2008). U.S. Embassy, Beijing, “Intellectual 

Property Rights in China: Trademarks,” n.d. (accessed August 5, 2010); State Intellectual Property Office 

(SIPO), China IPR Annual Book 2009, 2010. 26 U.S. Embassy, Beijing, “Intellectual Property Rights in China: Trademarks,” n.d. (accessed August 5, 

2010). 27 Ibid. 
1-6 

Patents 

A patent generally provides a set of exclusive rights granted to the inventor for a limited 

time period.28 Chinese law recognizes three kinds of patents: invention, utility model, and 

design (table 1.1). Invention patent applications (analogous to U.S. utility patents) are 

reviewed by a patent examiner to ensure that the invention is novel, is inventive, and has 

practical utility. Utility model and design patent applications are not substantively 

examined before the patent is granted; they are reviewed only for compliance with 

formalities. Utility model and design patents have a term of 10 years, compared to a 

20-year term for invention patents.29

TABLE 1.1 Categories and features of patents under Chinese law 

Invention Utility model Design 

Subject matter New technical solution 

relating to a product, 

process, or improvement 

thereof 

New technical solution 

relating to the shape, the 

structure, or their 

combination, of a product 

which is fit for practical use 

New design relating to the 

shape, pattern, color, or 

their combination, of a 

product which creates an 

aesthetic feeling and is fit 

for industrial application 

Patent term 20 years 10 years 10 years 

Examination Substantive Nonsubstantive Nonsubstantive 

Patents granted and 

domestic and foreign 

ownership (2009) 

Total grants: 15,640 

Domestic: 53.6% 

Foreign: 46.4% 

Total grants: 32,382 

Domestic: 99.4% 

Foreign: 0.6% 

Total grants: 41,000 

Domestic: 94.2% 

Foreign: 5.8% 

Sources: U.S. Embassy, Beijing, and SIPO. 

Utility model patents are sometimes known as “petty patents.” Many countries (including 

Japan, Taiwan, Korea, and Germany) have petty patents that are not substantively 

examined or that require a lower standard of inventiveness for their grant. The United 

States, however, does not offer this type of patent protection.30 Virtually all utility model 

and design patents in China are held by domestic patentees; non-Chinese firms rarely 

seek such protection in China. U.S. firms reportedly do not usually apply for utility 

model patents, in part because they are less familiar with them than invention patents.31 

Some U.S. firms, however, are reported to be developing patent portfolios in China that 

include all types of patents, particularly in light of well-publicized cases against foreign 

companies based on the alleged violation of Chinese utility model patents.32 

Patent infringement in Chinese law refers to patent exploitation without the authorization 

of the patent owner, including manufacturing patented products; using patented 

processes; offering to sell or selling patented products; using products directly acquired 

 28 China, like most other countries but unlike the United States, follows a first-to-file system under which 

priority for an invention is determined by the first application filed with the patent office rather than by the 

first to conceive of the invention. 29 U.S. Embassy, Beijing, “Intellectual Property Rights in China: Trademarks,” n.d. (accessed August 5, 

2010). Like invention patents in China, utility patents in the United States have a 20-year term. 30 Richards, “Utility Model Protection,” 2010. 

31 Industry official, interview by USITC staff, Washington, DC, July 14, 2010; Weisun, “Intellectual 

Property Laws in China,” 2010, 2. 32 Industry official, interview by USITC staff, Washington, DC, July 14, 2010; industry official, 

interview by USITC staff, Shanghai, China, September 15, 2010. See chapter 4. 
1-7 

 

through patented processes for production or business purposes; and importing or 

exporting patented products or products directly acquired through patented processes.33 

Trade Secrets 

Trade secrets generally protect technical or business information that is unknown to the 

public and brings economic benefits to the owner, and for which the owner has adopted 

measures to maintain its confidentiality. As in the United States, trade secrets in China 

are not registered with an administrative agency. Instead, they are protected internally 

through procedures and steps taken by the owner to maintain secrecy, such as requiring 

employees or others to sign confidentiality agreements and limiting access to secret 

information through computer passwords and other preventive measures.34

 

The violation of trade secrets is generally referred to as misappropriation. Similarly to the 

United States, trade secret misappropriation in China includes obtaining trade secrets 

from the owner by improper means such as theft, promise of gain, or coercion, or 

disclosing, using, or allowing others to use trade secrets obtained through these improper 

means or through breach of an agreement or confidentiality obligation.35 

Indigenous Innovation 

The term indigenous innovation may be traced to China’s Medium- to Long-Term Plan 

for the Development of Science and Technology (the MLP), released in January 2006, 

which calls on China to become an “innovation-oriented society” and a global leader in 

science and technology. The MLP introduced for the first time the term zizhu chuangxin. 

Chuangxin means innovation; zizhu has generally been translated as “indigenous,” but 

also as “independent,” “homegrown,” or “self-owned.” 36 The term zizhu chuangxin 

encompasses several policy goals of the Chinese government, including promoting the 

contributions of domestic companies to the Chinese economy rather than relying on 

foreign know-how and technology, building domestic R&D capabilities, and generally 

increasing the value that domestic Chinese companies contribute to the products and 

services they produce. 

Some observers see a link between China’s indigenous innovation policies and IPR 

infringement activity. In this view, China uses indigenous innovation policies to create an 

environment “that enables it to intervene in the market for IP, help its own companies to 

re-innovate competing IP as a substitute to American and other foreign technologies, and 

potentially misappropriate IP from U.S. and other foreign companies as components of its 

33 U.S. Embassy, Beijing, “Intellectual Property Rights in China: Patents,” n.d. (accessed August 5, 2010). 

Other types of patent violations in China include patent passing off and patent counterfeiting. Commission 

fieldwork did not identify specific U.S. industry concerns in these areas. 34 U.S. Embassy, Beijing, “Intellectual Property Rights in China: Trade Secrets and Unfair Competition,” 

n.d. (accessed August 5, 2010). 35 Trade secret misappropriation is included in China’s unfair competition law, which also addresses 

passing off, trade dress infringement, and other types of violations. U.S. Embassy, Beijing, “Intellectual 

Property Rights in China: Trade Secrets and Unfair Competition,” n.d. (accessed August 5, 2010). 36 Cao, Suttmeier, and Simon, “China’s 15-Year Science and Technology Plan,” December 2006, 38, 40; 

foreign government official, telephone interview by USITC staff, July 9, 2010. 
1-8 

industrial policies and internal market regulations.” 37 Potential connections between 

indigenous innovation and IPR infringement are discussed in Chapter 5. 

IPR Enforcement in China 

USTR and other U.S. government agencies generally consider the IP laws in China 

described above to be substantially TRIPS compliant.38 It is the enforcement of these 

laws that is considered most problematic: China’s enforcement regime “remains a major 

challenge” and has been described as ineffective and nondeterrent.39

 

IPR enforcement methods in China can generally be considered to fall into four 

categories: administrative enforcement, criminal prosecution, civil litigation, and customs 

enforcement.40 Significant structural and institutional impediments reportedly hamper the 

enforcement capacity of the Chinese IPR system. These impediments include a lack of 

coordination among national agencies and between subnational authorities and the central 

government; inadequate training and resources for enforcement; and corruption and local 

protectionism. 41 Local protectionism refers to local Chinese governments’ potential 

conflict of interest in enforcing IPR. Where counterfeiting industries are important 

contributors to the economy and jobs, local governments, which control the local 

markets, police, and judges, may have a strong incentive to overlook and protect 

infringement activities. As a result, criminal penalties are infrequently applied, and 

administrative and civil penalties are often weak and nondeterrent. 42 

Administrative Enforcement 

IPR enforcement is most frequently pursued through administrative action in China, 

outside of the court system. While quick and inexpensive for the IPR holder compared to 

civil litigation, administrative enforcement has its limitations. Administrative 

enforcement is generally limited to injunctive relief, the seizure of infringing goods, and 

the imposition of small administrative fines; compensation for damages is unavailable, 

 37 USITC, hearing transcript, Washington, DC, June 15, 2010, 171–72 (testimony of Jeremie Waterman, 

U.S. Chamber of Commerce). 38 USTR, National Trade Estimate 2009, 100; USDOC, “Doing Business in China,” 2010, 105. 39 Ibid. 

40 See, for example, Lee and Murdock, “Enforcement in China,” April 1, 2009. Other commentators 

categorize the enforcement mechanisms in different ways. Dimitrov (Piracy and the State, 2009, 12) states 

that “there are five different kinds of enforcement in China: judicial enforcement, three kinds of routine 

enforcement, and a campaign style enforcement.” The categories in this chapter have been chosen because 

they best highlight the similarities to and differences from U.S. practice. 41 USTR, National Trade Estimate 2009, 103; industry officials, interview with USITC staff, Washington, 

DC, August 2, 2010; industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010; 

industry officials, interviews by USITC staff, Hong Kong, September 21, 2010. 42 Chow, “Organized Crime, Local Protectionism,” 2003, 476–77; USITC, hearing testimony, June 15–16, 

2010, 36–38 (testimony of Professor Daniel Chow); USDOC, “Doing Business in China,” 2010, 106; 

Dimitrov, Piracy and the State, 2009, 156–58; industry officials, interview with USITC staff, Washington, 

DC, August 2, 2010; industry officials, interviews with USITC staff, Shanghai, China, September 15, 2010; 

industry officials, interviews by USITC staff, Hong Kong, September 21, 2010. 
1-9 

 

and proceedings generally have little deterrent effect.43 Although many agencies have the 

authority to levy administrative fines, those fines are paid to the agencies themselves and 

are not transferred to the IPR holder. Fines are usually low: one industry representative 

tracked nearly 800 IPR administrative actions between 2005 and 2009 and found that in 

fewer than half of administrative actions were fines awarded at all, and when awarded the 

fines averaged approximately $2,500.44 

More than a dozen Chinese agencies have administrative jurisdiction over IPR protection. 

At least six agencies share in trademark enforcement.45 Some focus on sector-related 

public health and safety, while others, such as the State Administration for Industry and 

Commerce, are generalists tasked with enforcement of trademark counterfeiting laws 

more broadly. Copyright enforcement is handled by several agencies as well, including 

the National Copyright Administration of China. The State Intellectual Property Office of 

China (SIPO) has the authority to handle patent invalidation and patent counterfeiting in 

administrative proceedings. The overlapping and complicated jurisdiction of the myriad 

agencies with an IPR function is often described as inefficient and counterproductive.46 

Another problem noted with administrative proceedings is that officials have limited 

investigatory powers, requiring IPR holders to conduct substantially all investigative 

work themselves, a process that can be expensive and difficult, especially for smaller 

companies. 47 Moreover, IPR holders often complain that administrative crackdowns 

result in only temporary closures of production or other facilities, and that penalties are 

not serious enough to deter repeat offenders.48 Seized or confiscated products can return 

to the market, and it is difficult to seize equipment used to produce counterfeit products.49

Infringers reportedly view administrative seizures and fines merely as a cost of doing 

business, and even increase production totals to account for the risk of seizure.50

Criminal Prosecution 

Certain acts of trademark counterfeiting, copyright piracy, and trade secret theft are 

crimes under Chinese law; patent infringement is not a criminal offense in China or the 

43 Lee and Murdock, “Enforcement in China,” April 1, 2009; USITC, hearing testimony, June 15–16, 

2010, 39 (testimony of Professor Daniel Chow); International AntiCounterfeiting Coalition (IACC), 

“Submission: Special 301 Comments,” February 18, 2010, 23; industry officials, telephone interviews with 

USITC staff, July 13 and 14, 2010; industry officials, interviews by USITC staff, Shanghai, China, 

September 15, 2010; industry officials, interviews by USITC staff, Hong Kong, September 21, 2010. 44 Industry official, email message to Commission staff, September 25, 2010. 45 Dimitrov, Piracy and the State, 2009, 188. 46 Dimitrov, Piracy and the State, 2009, 144–45, 186; see also USTR, 2010 Special 301 Report, 2010, 23; 

IACC, “Submission: Special 301 Comments,” February 18, 2010, 7. 47 IACC, “Submission: Special 301 Comments,” February 18, 2010, 23; USITC, hearing testimony, June 

15–16, 2010, 179 (testimony of Christian Murck, president, American Chamber of Commerce in China); 

industry official, interview by USITC staff, Washington, DC, August 2, 2010; industry officials, interviews 

by USITC staff, Shanghai, China, September 15, 2010. 48 IIPA, written submission to the USITC, July 9, 2010, 23; industry official, interview by USITC staff, 

Washington, DC, July 1, 2010; industry officials, telephone interview by USITC staff, July 9 and 13, 2010; 

industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010. 49 Sun, Evolving and Unique Nature of Chinese IP Law, July 2009; industry official, telephone interview 

by USITC staff, August 3, 2010; industry officials, interviews by USITC staff, Hong Kong, September 21, 

2010. 50 USTR, 2010 Special 301 Report, 2010, 21; USITC, hearing testimony, June 15–16, 2010, 40 

(testimony of Professor Daniel Chow). 
1-10 

 

United States.51 The boundaries for criminal IPR offenses in China are narrowly drawn. 

For example, there is no end-user liability for criminal copyright piracy in China, which 

prevents some enterprises that engage in massive IPR infringement—by using illegal 

copies of business software, for instance—from being criminally liable for that 

infringement.52 Criminal copyright liability requires a for-profit motivation, and criminal 

trademark liability may require the use of identical trademarks.53

The laws themselves are often vague as to the thresholds at which IPR violations become 

criminal, although judicial authorities purported to clarify the thresholds in 2004 and 

2007.54 According to judicial guidelines, trademark infringement can be criminal where 

the counterfeit goods are worth more than RMB 50,000 ($7,497) or there are illegal gains 

of more than RMB 30,000 ($4,498).55 Copyright infringement may be criminal when 

these same thresholds are met and when more than 500 copies of a work are distributed. 

Trade secret theft may be criminal when the harm caused exceeds RMB 500,000 

($74,969). 56 The guidelines have not led to an increase in the number of criminal 

prosecutions; industry representatives express concern that the guidelines are not 

sufficiently clear or consistently enforced, and that the value and volume thresholds at 

which police will actually start criminal investigations are too high.57 

Criminal IPR cases are still relatively rare in China, despite some high-profile cases that 

have arisen as a result of coordinated effort with the U.S. Federal Bureau of Investigation 

(FBI) and other international law enforcement agencies. 58 Although criminal cases 

theoretically can be self-initiated by the police or can be brought to court through private 

prosecution, criminal IP cases in China are almost always transferred from an 

administrative agency to the police. However, agencies reportedly are disinclined to 

transfer cases, in part because they may keep administrative fines but not criminal fines.59

For example, less than 1 percent of trademark cases were transferred from administrative 

agencies to the criminal system each year during 2005–07.60 Once the police receive the 

case, they must transfer it to the procuratorate (similar to a prosecutor), who decides 

51 U.S. Embassy, Beijing, “Intellectual Property Rights in China: IPR Toolkit,” n.d. (accessed August 5, 

2010). 52 IIPA, written submission to the USITC, July 9, 2010, 9; USTR, 2009 Report to Congress on China’s 

WTO Compliance, December 2009, 85. 53 USTR, 2009 Report to Congress on China’s WTO Compliance, December 2009, 85. 54 Supreme People’s Court and Supreme Procuratorate, “Interpretation on Several Issues,” April 5, 2006; 

WTO, “China–Measures Affecting IPR,” January 26, 2009. 55 Based on the 30-day average exchange rate (October 13–November 12, 2010) reported in IMF, IMF 

Exchange Rate Database. 56 Supreme People’s Court and Supreme Procuratorate, “Interpretation on Several Issues,” 

arts. 1, 3, 5 and 7, April 5, 2006; WTO, “China–Measures Affecting IPR,” January 26, 2009, 82–87. 57 Dimitrov, Piracy and the State, 2009, 150–51; USTR, 2009 Report to Congress on China’s WTO 

Compliance, December 2009, 85; USTR, 2010 Special 301 Report, 2010, 20; IACC, “Submission: Special 

301 Comments,” February 18, 2010, 7; industry officials, interviews by USITC staff, Hong Kong, 

September 21, 2010. Moreover, recent guidances from Chinese law enforcement agencies reportedly have not 

affected actual criminal enforcement in China. SIPO, “China Lowers the Threshold,” June 12, 2010. 58 See chapter 3 discussion of high-profile copyright and trademark enforcement cases; USITC, hearing 

transcript, June 16, 2010, 338–39 (testimony of Chris Israel, PCT Government Relations). 59 Dimitrov, Piracy and State, 2009, 147–48, 157–58; industry officials, interviews by USITC staff, Hong 

Kong, September 21, 2010. 60 SIPO, China IPR Annual Book 2009, 2010; SIPO, “China’s Intellectual Property Protection,” 2010. 
whether to indict or arrest the suspect.61 Moreover, the willingness of the police and other 

state actors to enforce the criminal IP laws varies geographically, with most of the cases 

brought in the coastal provinces.62 

Civil Litigation 

IPR owners, Chinese and foreign, can also pursue a civil action in China’s court system 

to enforce their rights. The number of civil actions brought to enforce IPR violations has 

grown rapidly in recent years, particularly in comparison to other civil cases in China. 

IPR cases increased by 128 percent during 2005–09; in comparison general civil cases 

increased by only 7 percent during 2005–07, the most recent data year.63 In 2009, 30,626 

IPR cases were initiated, of which 27,912 involved copyrights, trademarks, patents, or 

unfair competition claims (which include trade secrets); the remainder involved IPR 

contract disputes and “other” claims. Copyright cases represented approximately half of 

all IPR cases initiated each year and, along with trademark cases, have increased rapidly 

during the period. Patent and unfair competition cases (which include trade secret cases) 

have remained relatively unchanged (figure 1.1). 

FIGURE 1.1 Civil IPR case filings in China are growing, 2005–09

0

5,000

10,000

15,000

20,000

2005 2006 2007 2008 2009

First instance cases accepted

Copyright Patent Trademark Unfair Competition

Source: SIPO

Note: Based on initial actions in the year noted.

 61 In his detailed study of China’s IPR enforcement, Dimitrov found that prosecutors often elect not to go 

forward with a criminal case. Dimitrov, Piracy and State, 2009, 146, 152–53; IIPA, written submission to the 

USTR, 2009, 92–93 (describing the small number of criminal copyright cases that are prosecuted). 62 Dimitrov, Piracy and State, 2009, 158; industry officials, interviews by USITC staff, Hong Kong, 

September 21, 2010. 

1-11 

63 SIPO, China IPR Annual Book 2009, 2010, and “China’s Intellectual Property Protection,” 2010. 
1-12 

vails. 

 

China’s civil IPR litigation is dominated by domestic parties; only about 4 percent of 

cases reportedly involve foreign parties.64 Systemic concerns about the limitations of the 

Chinese system may play a role in foreigners’ infrequent use of the courts. One oftenmentioned concern relates to the lack of independence of the Chinese courts, which 

report directly to the central or local governments and where judges are elected, 

reappointed, paid, and removed by the legislatures. 65 Due to this connection, it is 

reportedly common for judges to follow instructions from the local government in 

particular cases.66 There is also concern that the Communist Party exerts subtle control 

over the outcomes of cases deemed sensitive by the government. 67 Industry 

representatives further report that they are reluctant to seek relief for infringement against 

Chinese state-owned enterprises (SOEs), both because of the risk that the judiciary or 

administrative authorities, reacting to political pressure, will deny relief, and because of 

the fear of government retaliation. 68 Meanwhile, it is often perceived as fruitless to 

pursue smaller infringers, who can disappear and set up shop elsewhere or under a 

different name even if the IPR holder pre 69

Industry representatives report a number of procedural difficulties with China’s IPR civil 

litigation system. First, there is no robust system for evidentiary discovery; litigants 

cannot require the other side to produce evidence in its possession. 70 The lack of 

discovery poses substantial problems for IPR holders.71 For example, without the ability 

to compel a defendant to disclose information about its production processes, method 

patents—while issued in China—are virtually impossible to enforce. 72 The lack of 

discovery is exacerbated by the Chinese courts’ lack of power to hold uncooperative 

defendants in contempt or, where such power exists, the refusal to exercise it. 73

Therefore, there is concern that Chinese defendants, particularly smaller defendants, can 

commit perjury and falsify records without risk of punishment. Such activities hamper 

64 Supreme People’s Court, “Intellectual Property Protection,” April 2010. It is unclear how the Supreme 

People’s Court defines cases that involve foreign parties. For example, cases brought in the name of a joint 

venture partner or foreign-invested enterprise may not be included in this statistic. Industry official, telephone 

interview by USITC staff, August 30, 2010. A recent survey conducted by a firm that assists IPR holders 

with management and enforcement of their IPR in China showed that approximately ten percent of Chinese 

IP cases with published judicial decisions involved foreign firms, almost always as plaintiffs. Rouse, “CIELA: 

China IP Litigation Analysis,” 2010. 65 Zhang, “International Civil Litigation in China,” 2002, 59, 94; Von Lewinski, Copyright Throughout 

the World, 2009, sec. 8.46(6) (noting also that “in financial respects, the local courts are highly dependent on 

the local governments”). See also Waterman, written testimony to the USITC, June 15, 2010. 66 Zhang, “International Civil Litigation in China,” 2002, 94. 67 Von Lewinski, Copyright Throughout the World, 2009, sec. 8.46(6); Castellucci, “Rule of Law with 

Chinese Characteristics,” 2007, 35, 50–51; industry officials, interviews by USITC staff, Washington, DC, 

July 15 and August 2, 2010; industry officials, telephone interviews by USITC staff, May 27, July 9, July 27, 

and August 3, 2010. 68 Industry officials, telephone interviews by USITC staff, July 9, 22, 29, and August 3, 2010; Waterman, 

written testimony to the USITC, June 15, 2010; industry officials, interviews by USITC staff, Hong Kong, 

September 21, 2010. See also Zhang, International Civil Litigation in China, 2002, 91. 69 Industry officials, telephone interviews by USITC staff, July 22, 29, and August 3, 2010; Industry 

officials, interviews by USITC staff, Hong Kong, September 21, 2010. 70 Sepetys and Cox, “Intellectual Property Rights Protection,” 2009, 6; Duncan et al., “A Comparison 

between the Judicial and Administrative Routes,” 2008, 535. 71 Industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010; industry officials, 

interviews by USITC staff, Hong Kong, September 21, 2010. 72 Industry official, telephone interviews by USITC staff, July 22 and 29, 2010. 73 Industry officials, telephone interviews by USITC staff, July 22, 27, and 29 and August 3, 2010; 

industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010. 
1-13 

 

the ability of IPR holders to prove their case and to prove damages.74 Foreign firms also 

are disadvantaged by onerous Chinese requirements that all evidence obtained abroad be 

notarized in the country in which it was obtained and then forwarded to the Chinese 

embassy in the foreign country for legalization.75 Such requirements impose significant 

cost and delay, and can make the presentation of documentary evidence from abroad 

extremely difficult.76

Industry representatives also report that civil cases in China offer ineffective remedies. 

For instance, civil damages in IPR suits when awarded are low. A recent survey found 

median damages of approximately $7,500 in civil actions brought by foreigners in 

Chinese courts from 2006–09.77 Damages often are based on lost profits, which can be 

difficult to prove if Chinese counterfeits and other infringing products are sold at lower 

prices than the IPR holder’s products, or through less formal channels.78 Absent proof of 

lost profits, Chinese law generally permits recovery of the infringer’s unjust enrichment, 

but the lack of discovery makes the infringer’s profits difficult to determine and obtain.79 

Even when plaintiffs prevail in civil actions, they may face obstacles. Damage awards are 

difficult to execute, especially when the defendant’s assets are located in a different 

province from the court.80 Although China’s courts have the power to issue preliminary 

and permanent injunctions, there is some concern that they are increasingly hesitant to 

award such relief.81 Even if a court were to award injunctive relief in favor of an IPR 

holder, the effect of such relief is often questionable, given that Chinese courts lack 

contempt power to punish noncompliance with an injunction.82 

Notwithstanding the difficulties faced by foreign firms seeking to enforce their IPR in 

Chinese courts, some industry representatives are optimistic. They observe that the 

Chinese judicial system has improved dramatically since China’s accession to the WTO 

in 2001, and express confidence that the courts will further improve with more time and 

experience. 83 This optimism is most frequently expressed with regard to courts and 

74 Industry officials, telephone interviews by USITC staff, July 22, 27, and 29, and August 3, 2010; 

industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010; industry officials, 

interviews by USITC staff, Hong Kong, September 21, 2010. 75 Von Lewinski, Copyright Throughout the World, 2009, sec. 8.46(b) (citing Rule 11 of the Supreme 

People’s Court’s Several Provisions on Evidence in Civil Proceedings). 76 Cutshaw, Burko, and Wagner, Corporate Counsel’s Guide to Doing Business in China, 2009, sec. 24.9 

(3d ed.); industry officials, telephone interviews by USITC staff, July 27 and 29, 2010; industry officials, 

interviews by USITC staff, Shanghai, China, September 15, 2010; industry officials, interviews by USITC 

staff, Hong Kong, September 21, 2010. 77 Rouse, “CIELA: China IP Litigation Analysis,” 2010. The median recovery to foreigners was higher 

for patent cases (approximately $14,000), trademark cases (approximately $12,000), and unfair competition 

cases (approximately $13,000) and substantially lower for copyright cases (approximately $4,500). 78 Industry officials, telephone interviews by USITC staff, July 22 and 29, 2010; industry officials, 

interviews by USITC staff, Shanghai, China, September 15, 2010. 79 Yasong and Connor, “An Overview of the Judicial Protection,” 2008, 163, 172; Duncan et al., “A 

Comparison Between the Judicial and Administrative Route,” 2008, 535; industry officials, telephone 

interviews by USITC staff, July 22 and 29, 2010. 80 Industry officials, telephone interviews by USITC staff, July 22 and 29, 2010. 81 Industry official, telephone interviews by USITC staff, July 27 and August 3, 2010; industry officials, 

interviews by USITC staff, Shanghai, China, September 15, 2010. 82 Industry officials, telephone interviews by USITC staff, July 22 and 29, 2010. 83 Industry officials, telephone interviews by USITC staff, July 22 and August 3, 2010; industry officials, 

interviews by USITC staff, Shanghai, September 15, 2010; industry officials, interviews by USITC staff, 

Hong Kong, September 21, 2010. 
1-14 

judges in major cities, such as Beijing and Shanghai; it is reportedly more difficult to find 

experienced judges and predictable procedures in Western provinces.84 

Customs Enforcement 

Unlike the United States, where CBP’s IPR responsibilities focus solely on keeping out 

infringing imports, in China the General Administration of Customs (GAC) primarily 

focuses on preventing the export of infringing goods. 85 Accordingly, foreign rights 

holders can use customs authorities in China to prevent the export of infringing 

merchandise. 

For copyright and trademark enforcement, an IP owner can invoke customs protection in 

China in two ways. First, the owner can alert the GAC to a known infringing shipment, 

which will then be detained if the IP owner satisfies a bonding requirement. 86 More 

commonly, for a nominal fee the owner may record his or her IP in a database that assists 

the GAC in identifying infringing goods.87 According to several industry representatives, 

the GAC has been proactive in encouraging IP owners to record and to assist in the 

identification of authorized suppliers so as to improve customs enforcement. Indeed, the 

value of infringing goods seized by the GAC has increased sharply in recent years.88

However, customs enforcement in China apparently is still viewed as a second-best 

solution by IP owners: infringement continues, and only a small portion of infringing 

goods can be intercepted. 

The United States challenged aspects of China’s IPR enforcement system, including 

criminal thresholds and certain customs measures, in a recent WTO case (box 1.1). 

BOX 1.1 Resolution of WTO Challenge to Certain China IPR Measures (DS362) 

In April 2007, the United States filed a complaint under the WTO dispute settlement provision challenging certain 

Chinese IPR protection and enforcement measures in China, alleging that the measures are inconsistent with China’s 

obligations under the TRIPS Agreement. The United States challenged, among other things, China’s lack of criminal 

procedures and penalties for commercial-scale counterfeiting and piracy in China; compulsory customs measures 

that permit seized goods to be released into the channels of commerce; and China’s denial of copyright and related 

rights protection and enforcement to creative works of authorship, sound recordings, and performances that have not 

been authorized for publication or distribution within China. 

In a report circulated on January 26, 2009, the dispute settlement panel concluded that certain provisions of China’s 

copyright law and customs measures are inconsistent with the TRIPS Agreement and recommended that China bring 

them into conformity with its obligations under the TRIPS Agreement. The WTO Dispute Settlement Body (DSB) 

adopted the panel report on March 20, 2009. On June 29, 2009, China and the United States agreed that China 

should implement the DSB’s recommendations and rulings by March 20, 2010. On March 19, 2010, China notified the 

DSB it had done so. 

Sources: USITC, Year in Trade 2009, 2010; WTO, “China–Measures Affecting IPR,” January 26, 2009. 

 84 Industry officials, interviews by USITC staff, Shanghai, September 15, 2010. 85 Zhang, “International Civil Litigation in China,” 2002, 72, 92. 

86 Lee and Murdock, “Enforcement in China,” April 1, 2009. 87 Dimitrov, Piracy and the State, 2009, 78. 88 In 2009, the GAC seized goods valued at RMB 450 million (approximately $67 million), a 350 percent 

increase over the value of 2005 seizures. SIPO, China IPR Annual Book 2009, 2010; SIPO, “China’s 

Intellectual Property Protection,” 2010. 
2-1

CHAPTER 2 

U.S.-China IP-Related Trade and Investment 

This chapter provides context for the broader U.S.-China trade and investment 

relationship as it relates to IP and innovation. It also describes the three primary channels 

by which IP-sensitive goods and services are traded: international trade of merchandise 

goods (such as advanced technology products); royalty and license fees; and foreign 

direct investment (FDI). 

The U.S.-China IP-Related Trade and Investment 

Relationship 

The U.S.-China IP-related trade and investment relationship is globally significant due to 

the magnitude of global innovation that originates from the United States and China’s 

growing capacity for both IPR infringement and innovation in its burgeoning and 

internationally connected manufacturing sector. 

U.S. Economic Strength and the Importance of Innovation 

Over the past 30 years, the United States has produced a dominant 23–30 percent of the 

world’s gross domestic product (GDP) when measured at market exchange rates. 1

Innovation has been key to sustaining this distinction: the U.S. Commerce Department 

has estimated that the creation of new products and processes in the United States, 

through capital investment and increased efficiency, has accounted for as much as threequarters of the United States’ average annual growth since the mid-1940s.2

 

Data on global research and development (R&D) expenditures and patents granted 

support the notion that the United States is one of the world’s innovation leaders. For 

R&D—a broad measurement of long-term investment in innovation—the United States 

spent more than $407 billion in 2007.3

 This was more than what was spent in either Asia 

or the European Union (EU), and was roughly equivalent to the combined R&D 

expenditures of the next four most innovative individual countries: Japan, China, 

Germany, and France.4

 R&D expenditures in the United States as a share of the country’s 

economic output have been around 2.5 percent over the past decade, higher than in 

comparable markets such as the EU (1.8 percent). It is also considerably higher than 

China’s relative R&D spending, which has grown from 0.6 percent of GDP in 1996 to 

1.5 percent of GDP in 2007.5

 

 1

 The U.S. share of world GDP is approximately 20 percent in recent years when measured using 

purchasing power parity instead of market exchange rates (to account for the relative cost of goods and 

services), but remains higher than that of any other country. World Bank, World Development Indicators 

database (accessed June 1, 2010). 2

 Increased efficiency is often referred to as increases in total factor productivity. USDOC, “Patent 

Reform: Unleashing Innovation,” April 2010; Aizcorbe, Moylan, and Robbins, “Toward Better Measurement 

of Innovation and Intangibles,” January 2009. 3

 USDOC, BEA, National Accounts, Satellite Account Database (accessed September 24, 2010). 4

 National Science Board, Science and Engineering Indicators, 2010. 5

 Ibid. 
2-2

 

The United States is also an important location for the filing and grant of patents—which 

are broad indicators of the usefulness of inventions. In 2008, the U.S. Patent and 

Trademark Office (USPTO) granted approximately 20 percent (157,772) of the 777,556 

patents granted worldwide, second only to Japan (176,950). China was third, with 

approximately 12 percent of patents granted worldwide (93,706); however, patent grants 

in China have been growing at a faster rate than in any other region.6

China’s Growing Manufacturing Capacity and IPR Infringement 

China’s economy represented 7 percent of world GDP in 2008, compared to only 

2 percent at the inception of its market-oriented reform process in 1978. 7 China’s 

economic growth averaged 10 percent in real terms between 1981 and 2007 alone,8

 faster 

than that of any other economy over the past three decades,9

 and has been largely driven 

by China’s evolving role as a global manufacturer. 

China as a Global Manufacturing Hub 

China’s economic growth has been largely export-led, fueled mainly by its manufacturing 

sector. Between 1985 and 2008, China’s manufacturing exports increased from 

26 percent to 93 percent of its merchandise exports,10 attributable mainly to increases in 

the production of goods—such as consumer electronics, computers, and appliances—that 

were assembled in China using imported intermediate inputs. 11 Since the mid-1980s, 

China’s abundance of lower-cost labor and tax incentives distinguished it as an attractive 

manufacturing source for the production and export of labor-intensive goods such as 

footwear, toys, and apparel.12 Spurred by large FDI and technology inflows from foreigninvested firms in incentive zones and other conduits, China’s manufactured goods have 

progressively become more technically sophisticated. The processing of these 

manufactured goods now accounts for 40 percent of China’s total trade, and has helped 

bring it to the forefront of global production.13

China’s emergence as a global manufacturer is likely to have increased its capacity for 

counterfeiting, given its burgeoning, increasingly sophisticated, and internationally 

connected manufacturing sector operating within a business environment broadly 

characterized as ineffective in IP protection.14 Despite the benefits multinationals reap 

from producing in China, they also face an array of IPR infringement problems in their 

supply chain operations, including illegal transfers of product specifications and 

6

 Approximately half (49 percent) of the U.S. patents granted were to domestic residents (that is, the 

official residence of the first named applicant on the original patent application was a U.S. resident). By 

contrast, in Japan, 86 percent of patents granted were to domestic residents, and in China, 50 percent were to 

domestic residents. WIPO, World Intellectual Property Indicators, 2010. 7

 On a purchasing power basis, China represented 11 percent of world GDP in 2008. World Bank, World 

Development Indicators database (accessed August 1, 2010). 8

 Economist Intelligence Unit, Country Profile 2009, 25. 9

 Bergsten et al., China The Balance Sheet, 2006. 10 Kianian and Yi, “China’s Emergence,” Q4 2009; World Bank, World Development Indicators database 

(accessed August 1, 2010). 11 Amity and Freund, “An Anatomy of China’s Export Growth,” April 6, 2007. 12 Kianian and Yi, “China’s Emergence,” Q4 2009; WTO, “Trade Policy Review: China (2010),” 2010. 13 WTO, “Trade Policy Review: China (2010)”; World Bank, World Development Indicators Database 

(accessed August 1, 2010). 14 USTR, 2010 Special 301 Report, April 2010, 19. 
2-3

 

unauthorized overproduction of goods on “midnight shifts” (see chapter 3).15 This IPR 

infringement reportedly has decreased multinationals’ market shares and returns on R&D 

investment, both inside and outside of China.16 

Multinationals with supply chain operations in China reportedly must compete against 

counterfeiters who are using increasingly sophisticated manufacturing capabilities, hightech distribution channels, product differentiation (to better adapt to local preferences), 

and lower prices to gain domestic market share. 17 Moreover, strong demand from 

external markets for cheaper counterfeit products has eroded multinationals’ market 

shares and R&D investment returns outside China.18 

China’s Transition Toward Greater Innovation 

Despite the rapid progress China has made integrating into the global economy, the 

manufacturing stage of production in which it is dominant is typically associated with a 

limited share of the value of the final product and, consequently, profitability, as seen in 

the “smiling curve” in figure 2.1. 19 Upstream stages, such as R&D and product 

development, as well as downstream stages, which include marketing and services, are 

typically associated with greater profitability. Accordingly, many Chinese firms have 

attempted to strengthen their competitive positions by migrating to more profitable stages 

of production, as seen in the value chain migration section of figure 2.1. 20 Some 

multinationals have transferred certain higher-value functions to their Chinese partners, 

including basic R&D functions (associated with product development) and marketing and 

sales operations. This, however, still appears to be happening on a limited scale.21 

China’s indigenous innovation policies (see chapter 5) are, broadly speaking, seeking the 

same objective of transferring more of the profitable stages of production, such as R&D, 

to China. However, these policies are predominantly aimed at facilitating the 

development of domestic Chinese firms that work independently of multinationals’ 

supply chain operations. 

Growing Economic Engagement and the IPR Challenge 

The U.S. and Chinese economies have become increasingly interdependent in recent 

years. During the first year of China’s economic reforms in 1978, two-way trade (exports 

plus imports) was $1 billion, and China was the United States’ 32nd-largest export 

market and 57th-largest source of imports. 22 By 2009, China was the United States’ 

second-largest single-country trading partner based on two-way trade, and accounted for 

14.5 percent of U.S. trade with the world. The United States’ bilateral deficit with China 

15 United Nations Economic and Social Commission for Asia and the Pacific, “IP Infringement in the 

Supply Chain in China,” July 2006. 16 A.T. Kearney, “The Counterfeiting Paradox,” n.d., 2005; Tse, et al., “Shan Zhai: A Chinese 

Phenomenon,” 2009; PriceWaterhouseCoopers, Redefining Intellectual Property Value, 2005. 17 Ibid. 

18 PriceWaterhouseCoopers, Redefining Intellectual Property Value, 2005. 19 The “smiling curve” illustrates the concept of value-added along manufacturing supply chains, most 

notably in the IT-related manufacturing industry. 20 Tse, The China Strategy, 2010. 21 Branstetter and Foley, “Facts and Fallacies about U.S. FDI in China,” August 2007. 22 CRS, “China-U.S. Trade Issues,” October 7, 2008. 
FIGURE 2.1 The “smiling curve” and China’s value chain migration through production stages 

of $230.4 billion in 2009 was higher than the U.S. deficit with any other single-country 

trading partner.23 

 

2-4

23 USITC, Year in Trade: 2009, 2010, 5–11. 
2-5

Despite this increasing interdependence, IPR infringement in China remains a serious and 

costly problem for many U.S. firms. Weak IPR enforcement in China is estimated to have 

significant costs for the U.S. and the Chinese economies.24 Ineffective IPR enforcement 

and the resulting infringement reportedly has led to reduced U.S. exports of IP-sensitive 

products and technologies and to lower profits for both U.S. firms operating in China and 

for U.S. firms that license IP to Chinese entities.25 For example, according to USTR, high 

levels of counterfeiting and piracy in China, combined with ineffective enforcement, 

have led many U.S. firms to limit the marketing of their leading-edge products and 

technologies in China. 26 The weak IPR regime also is viewed as harming the Chinese 

economy by deterring IP-sensitive trade and investment as well as dampening domestic 

innovation. Both of these trends lower the productive potential of Chinese enterprises.27

Notwithstanding the deficiencies of the Chinese IPR system, the Chinese market is more 

important than ever for U.S. companies, primarily because of its size and growth 

potential.28 While global manufacturers originally considered China an export platform 

for goods destined for advanced industrial countries, they now also consider it as an 

essential market for U.S. goods, a development largely attributable to China’s rapidly 

growing economy. Moreover, both USTR and private sector representatives report that 

China's IP institutions are generally getting stronger, albeit slowly and with much room 

for improvement.29

U.S.-China IP-Related Flows 

There are three primary channels by which IP-sensitive goods and services flow between 

the United States and China––international trade, royalty and license fee flows, and 

FDI.30 The following discussion focuses on certain metrics that are available to measure 

these flows and, potentially, provide insights into the bilateral IP-sensitive trade and 

investment relationship. 

Challenges to Defining IP-Sensitive Products 

U.S.-China bilateral trade in IP-sensitive goods is difficult to measure. First, it is 

challenging to detail the scope of IP-sensitive goods and services. A broad range of 

products and services could be considered IP-sensitive; such goods range from 

technology-intensive products, such as computers and semiconductors, to the creative arts 

(e.g., books and films) and branded products (e.g., apparel and footwear). IP-sensitive 

services include such intangible assets as the design of manufacturing processes. 

Moreover, it may be difficult to assess the role of IP in the production of goods and 

 24 USITC, hearing transcript, June 15, 2010, 8, 18 (testimonies of Lee Branstetter, Carnegie Mellon 

University and Fritz Foley, Harvard Business School). 25 USITC, hearing transcript, June 15, 2010, 9–10 (testimony of Lee Branstetter, Carnegie Mellon 

University). 26 USTR, National Trade Estimate 2009, 75. 27 USITC, hearing transcript, June 15, 2010, 9–10 (testimony of Lee Branstetter, Carnegie Mellon 

University); Hassan, Yaqub, and Diepeveen, Intellectual Property and Developing Countries, 2010, 18. 28 Industry officials, interviews and telephone interviews by USITC staff, June–July 2010. 29 USTR, National Trade Estimate 2009, 100; USITC, hearing transcript, June 15, 2010, 9–10, 20 

(testimonies of Lee Branstetter, Carnegie Mellon University, and Fritz Foley, Harvard Business School); 

industry officials, interviews and telephone interviews by USITC staff, July 2010. 30 Maskus, Intellectual Property Rights, 2000, 73–83; USITC, hearing transcript, June 15, 2010, 18 

(testimony of Fritz Foley, Harvard Business School). 
2-6

 

services. Certain observers comment that nearly all internationally traded U.S. products 

and services are IP-dependent.31

Scholarly practices in this regard vary. Testimony at the June 2010 USITC hearing 

revealed that some academic researchers identify IP-sensitive sectors by their higher 

utilization rate of formal IP instruments such as patents and copyrights, compared to nonIP-sensitive products. 32 Other studies have identified IP-sensitive sectors as technologyintensive industries characterized by high levels of R&D, worker productivity, and 

innovation. 33 Still other approaches focus on patent-, copyright-, and trade secretintensive sectors; however, trademarked goods, which are subject to high levels of IPR 

infringement in China, are not ordinarily captured by these studies. 

Table 2.1 provides examples of potential IP-sensitive sectors and products, based on 

information provided by U.S. industry representatives and researchers. Generally, IPsensitive products can be categorized by type of IP protection (e.g., patents, copyrights, 

and trademarks).34 However, identifying products and sectors by the principal type of IP 

instrument used can be problematic because there can be considerable overlap of IP 

instruments for particular products and sectors; many products rely on all types of IP.35

Merchandise Goods 

Merchandise goods that are IP-sensitive may be characterized by advanced technological 

content, rapidly evolving technology, and/or significant quality differentiation.36 These 

products cover a broad range of sectors, including high-tech patented goods, such as 

pharmaceuticals and semiconductors; trademarked products, such as alcoholic beverages 

and footwear; copyrighted materials, such as books and sound recordings; and products 

that are trade secret-intensive, such as food products using proprietary recipes.37 

Advanced Technology Products 

One possible proxy for defining IP-sensitive high-tech products is the classification 

system used by the U.S. Census Bureau (Census) for advanced technology products 

(ATPs). Census developed the ATP classification system to monitor trade in products 

31 USITC, hearing transcript, June 15, 2010, 61–63 (testimony of Bruce Lehman, International 

Intellectual Property Institute). 32 USITC, hearing transcript, June 15, 2010, 63 (testimony of Lee Branstetter, Carnegie Mellon 

University); Siwek, “Engines of Growth,” 2005, 5. Sectors include digital industries (software, computer and 

electronics; motion picture and sound recordings) as well as other patent-dependent industries (such as 

aerospace, automotive, and pharmaceuticals) and certain industries that support the transportation of these 

goods. 33 In a study by NDP Consulting, IP-sensitive sectors are identified by a number of criteria: having a 

larger proportion of highly skilled labor paid higher-than-average wages; producing highly value-added 

products; investing to a greater degree in R&D and capital formation; and account for a greater share of 

exports than non IP-sensitive sectors. Pham, “The Impact of Innovation,” April 2010, 3–6. 34 For example, pharmaceutical and biotechnology products are highly patent-intensive; printed material 

and sound recordings are copyright-intensive; and food, beverages, apparel, and footwear are trademarkintensive. 35 For example, computer software is both patent- and copyright-intensive. Moreover, certain trademarkintensive sectors, such as cigarettes, are also highly patent-and trade secret-intensive (cigarette filters and 

other materials used in the production of cigarettes are patent-intensive, while tobacco blending and flavoring 

methods are trade secret-intensive). 36 Maskus, Intellectual Property Rights, 2000, 73. 37 Ibid., 78. 
TABLE 2.1 Examples of potential IP-sensitive sectors and products 

Aerospace product and parts manufacturing 

Apparel manufacturing 

Breweries, wineries, and distilleries 

Computer and electronic product manufacturing 

Computer systems design and related services 

Electrical equipment, appliance, and component manufacturing 

Footwear manufacturing and other leather and allied products 

Game, toy, and children's vehicle manufacturing 

Internet publishing and broadcasting and web search portals 

Jewelry and silverware manufacturing 

Machinery manufacturing 

Medical equipment and supplies manufacturing 

Motion picture and video industries 

Motor vehicle equipment manufacturing 

Newspaper, periodical, book, and directory publishing 

Chemical manufacturing 

Pesticide, fertilizer, and other agricultural chemical manufacturing 

Pharmaceutical and medicine manufacturing 

Research and development 

Semiconductor and other electronic component manufacturing 

Software publishing 

Sound recording industries 

Television broadcasting 

Tobacco manufacturing 

Watch, clock, and part manufacturing 

Source: Compiled by USITC staff from industry and academic sources. 

Note: Sectors and products correspond to NAICS classifications. 

that employ new or leading-edge technologies. The system categorizes products into 10 

technology sectors: biotechnology, life science technologies, optoelectronics, information 

and communications, electronics, flexible manufacturing, advanced materials, aerospace, 

weapons, and nuclear technology. 38 Because ATP categories include only certain 

products with new or leading-edge technologies (product definitions are subject to 

regular updates), the classification does not capture the broader scope of technologyintensive goods and sectors that are IP-sensitive but do not have leading-edge 

technologies. As a result, ATP products are primarily patent-and trade secret-intensive; 

they do not cover most IP-sensitive trademarked and copyrighted goods. 

U.S. exports of ATP products to China more than doubled during 2000–09, to $17 billion 

(figure 2.2). Three sectors accounted for over 80 percent of such exports in 2009: 

aerospace (31 percent), primarily aircraft and parts; electronics (31 percent), primarily 

semiconductors; and information and communications equipment (21 percent). Except 

for the aerospace sector, the bulk of U.S. ATP exports were intermediate goods or 

components that Chinese manufacturers assembled into finished products. U.S.-China 

bilateral trade in these sectors reflects a global manufacturing trend whereby different 

countries, such as the United States and China, specialize in various segments of global 

supply chains.39 

ATP products’ share of total U.S. exports to China has been declining. The share was 

25 percent in 2009, down from levels approaching 40 percent at the beginning of the 

decade. This drop may reflect a shift by China to import from other suppliers, including 

 38 For a description of the ATP sectors, see the U.S. Census Bureau, http://www.census.gov/foreigntrade/reference/glossary/a/atp.html. July, 2010. 

2-7

39 Hammer, Koopman, and Martinez, “U.S. Exports of ATP to China,” 2009. 
34%

38% 38%

29%

21% 21% 20% 19%

25%

19%

0

20

40

60

80

100

120

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Billion $

ATP share of U.S. exports to China 

U.S. exports to China 

U.S. ATP exports to China 

Sourc

2-8

e: World Trade Atlas.

FIGURE 2.2 U.S. ATP exports to China, 2000–2009

 

other Asian countries. It may also be the result, in part, of China’s growing domestic 

manufacturing capacity for inputs and assembly components. The concerted effort by the 

Chinese government to develop value-added production domestically has led U.S. firms 

to increasingly set up manufacturing facilities in China to serve the Chinese market, 

rather than exporting to China from the United States. 

The value of U.S. ATP imports from China increased rapidly during the decade, rising to 

over $90 billion in 2009, up from just over $12 billion in 2000 (figure 2.3). ATP imports’ 

share of total imports from China also increased steadily during the period, rising to 

roughly one-third of total U.S. imports from China in 2009, compared with 12 percent in 

2000. The rapid acceleration in the value and share of ATP imports over the period was 

concentrated in the information and communications sector, which accounted for nearly 

90 percent of ATP imports. 40 These products include IP-sensitive goods, primarily 

consumer electronics products, such as computers and equipment, telephones, cameras, 

and televisions (figure 2.4). Nearly one-half of such imports––$37 billion by value or 

46 percent––were categorized in just two product codes, computers and cellular phones. 

In sum, a substantial and increasing share of U.S. imports from China are high-tech, IPsensitive products, illustrating the increasingly important role IP plays in the expanding 

U.S.-China bilateral relationship. Foreign-invested enterprises (FIEs) 41 reportedly 

accounted for most of the surge in China’s ATP exports in recent years, as the Chinese 

government provided tax and other incentives (e.g., the establishment of high-tech 

industrial development zones focused on exports) to encourage foreign investment.

40 For additional analysis of trends in U.S. ATP imports, see Hammer, Koopman, and Martinez, “Chinese 

Exports of ATP to the United States,” 2009. 41 An affiliate of a foreign company operating in China. 
12% 13% 16%

19%

23% 24% 25% 27% 27%

30%

0

50

100

150

200

250

300

350

400

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

$

Billion $

ATP share of U.S. imports from China

U.S. imports from China

U.S. ATP imports from China

Source: World Trade Atlas.

FIGURE 2.3 U.S. ATP imports from China, 2000–2009 

Flexible 

manufacturing

1%

Life sciences

1%

Electronics

2%

Opto-electronics

7%

Other

1%

Information & 

communication

88%

FIGURE 2.4 U.S. ATP imports from China, 2009 ($89.7 billion)

Source: World Trade Atlas.

Trademarked and Copyrighted Goods 

While not necessarily high-tech, trademarked and copyrighted goods account for a large 

share of IP-sensitive products that are subject to substantial infringement in China. 

However, while proxies exist for high-tech IP-sensitive goods that are typically protected 

by patents and trade secrets, such as the ATP categories, it is more difficult to categorize 

2-9
2-10

the broad spectrum of these trademark- and copyright-protected products.42 U.S. Customs 

and Border Protection (CBP) data on seizures of IPR-infringing goods from China 

provide some indication of the types of IP-sensitive goods that are counterfeited 

(trademark infringing) and pirated (copyright infringing), although most CBP seizures are 

for trademark infringement.43 

According to CBP, China was the source of 79 percent of the counterfeit and pirated 

goods seized at the U.S. border in 2009. Hong Kong accounted for an additional 10 

percent. 44 Footwear and apparel accounted for most of these seized products. Other 

categories of products seized were consumer electronics, computers/hardware, jewelry, 

pharmaceuticals, and media products (table 2.2). 

TABLE 2.2 U.S. border seizures of counterfeit and pirated goods from China, FY 2009

Commodity Domestic value 

(million $)

% of total

Footwear 98.0 48

Handbags/wallets/backpacks 19.6 10

Consumer electronics 18.5 9

Wearing apparel 17.9 9

Computers/hardware 8.8 4

Jewelry 7.3 4

Pharmaceuticals 6.7 3

Media 5.5 3

Watches/parts 4.9 2

Toys/electronics games 4.5 2

All other commodities 13.1 6

 Total 204.7 100

Source: U.S. Customs and Border Protection. 

CBP seizure data, however, offer only a partial picture of traded IP-sensitive goods and 

IPR infringement activities in China. In 2009, the total value of seized goods from China 

was only $205 million. 45 A problem with extrapolating the scale and nature of 

counterfeiting and piracy from CBP seizure data is that a substantial share of 

infringement involves products that are not easily identifiable as counterfeit through 

border inspections, and therefore are seldom intercepted by CBP. Furthermore, CBP 

focuses its enforcement efforts on IP recorded in its database and only a small fraction of 

active trademarks and copyrights are recorded with CBP.46 Thus, CBP is more likely to 

seize counterfeit footwear with recorded trademarks than products with IP that is not 

recorded.47 Resource constraints also substantially limit the number of inspections and 

seizures carried out by CBP. 

 42 This lack of categorization precludes presenting trade data similar to those provided for ATP products. 43 Government officials, telephone interview by USITC staff, July 22, 2010. 44 Data are for fiscal year 2009. CBP, Intellectual Property Rights Seizure Statistics, October 2009, 12. 45 For example, for media products, including sound recordings and movies, the value of Customs 

seizures was only $5.5 million, which does not reflect the value of media pirated in the Chinese market or the 

pirated media that is illegally exported from China to the United States and other global markets. Seizure 

statistics for other markets are discussed in chapter 3. 46 Of an approximately 1.6 million active registered trademarks in the United States, approximately 

26,000 are recorded with the CBP. Government officials, telephone interview by USITC staff, July 22, 2010; 

government official, email message to USITC staff, September 20, 2010. 47 Industry official, telephone interview by USITC staff, June 27, 2010. 
2-11

Moreover, CBP officers have the authority to seize products that infringe patents or 

misappropriate trade secrets only in very limited circumstances.48 Thus, border seizures, 

while an important tool, provide very little indication of the range of products affected by 

patent infringement or trade secret misappropriation that are imported into the United 

States. 

Royalties and License Fees 

U.S. companies receive payments in the form of royalties and license fees from the 

transfer of IP to companies in China. U.S. government statistics provide data for certain 

categories of intangible assets for which IP owners receive compensation, including 

industrial processes; books, records and tapes; broadcasting services; general-use 

computer software;49 and franchise fees (table 2.3). 

TABLE 2.3 U.S. receipts from China and rest of world, royalties and license fees by type of intangible asset, 

2004–08 (million $) 

Industrial 

processes 

Books,

records,

and tapes

Broadcasting

and recording

of live events

Franchise

fees Trademarks

General-use 

computer

software Total

China 

 2008 1,080 2 21 204 292 727 2,326

 2007 831 3 20 156 231 605 1,846

 2006 663 2 7 114 202 528 1,516

 2005 159 5 1 21 28 71 285

 2004 185 3 1 17 48 61 315

Rest of world 

 2008 39,050 1,551 556 4,168 12,260 31,564 89,149

 2007 35,960 1,497 538 3,739 11,534 28,621 81,889

 2006 31,752 1,471 418 3,156 10,181 22,127 69,105

 2005 6,321 684 241 672 1,422 6,184 15,524

 2004 5,472 652 200 585 1,666 4,689 13,264

Source: BEA. 

Note: Data since 2006 include receipts from affiliated and unaffiliated businesses. Prior to 2006, data reflect only

receipts from unaffiliated businesses. 

Stronger IPR protection is generally associated with larger royalty and license fee flows, 

because weak IPR protection means that payment of such fees is not enforced.50 Most of 

the value of U.S. receipts of royalties and license fees from China is from affiliated 

businesses, which accounted for about two-thirds of payments in 2008. 51 In-house 

transfers of IP are generally less likely to result in the loss of valuable IP than arms-

 48 USITC exclusion orders issued under 19 U.S.C. § 1337 can result in the seizure of patent-infringing 

and trade secret-misappropriating goods. U.S. Customs, “Focused Assessment Program,” December 2007. 

However, comparatively few such orders are issued. The USITC’s issuance of an exclusion order will often 

result in voluntary compliance by the infringer, in which case CBP, as a practical matter, never becomes 

involved. 49 Custom-designed software is not included in the BEA data. Government official, interview by USITC 

staff, August 9, 2010. 50 Maskus, Intellectual Property Rights, 2000, 140–41; USITC, hearing transcript, June 15, 2010, 23 

(testimony of Fritz Foley, Harvard Business School). See chapter 6. 51 USDOC, BEA, “U.S. International Services, table 4,” (accessed July 2010). 
2-12

 

length transactions between unaffiliated firms.52 However, it is reported that weak IPR 

protection in China not only dampens IP flows to unaffiliated firms but also deters the 

transfer of IP and royalty flows among affiliated firms.53 Weak IPR protection may lead 

companies to withhold IP from foreign affiliates for fear that the employees of affiliates 

may leave the company and take valuable IP with them.54 

According to official data, U.S. receipts from royalties and license fees from China on all 

categories of intangible assets expanded from $1.5 billion to $2.3 billion during 2006–08 

(table 2.3).55 Although U.S. receipts from China and the rest of the world followed a 

similar trend, expanding substantially in most asset categories, receipts from China 

represented a very small share of total U.S. receipts.56 Notably, receipts from China on 

copyrighted materials––books, records, and tapes ($2 million in 2008)––were essentially 

static during the period, compared to rapid growth in receipts from the rest of the world. 

This may partially reflect IPR infringement and market access problems in China for 

these copyrighted materials. 57

Foreign Direct Investment 

U.S. companies whose products contain IP-sensitive content also channel capital, 

technology, and related assets through FDI.58 Weak IPR protection in China reportedly 

depresses the level of U.S. FDI in China.59 Even though the stock of U.S. investment in 

China has been increasing in recent years, reaching $49 billion in 2009 (figure 2.5), U.S. 

FDI in China accounted for a relatively small share (1.4 percent) of the total $3.5 trillion 

stock of outbound U.S. investment.60 According to the Chinese Ministry of Commerce 

(MOFCOM), the United States was China’s fifth-largest FDI provider in 2009, 

accounting for 4 percent of total FDI.61 There are no official U.S. or Chinese data on 

exclusively IP-sensitive FDI, but U.S. FDI in the manufacturing sector, which includes 

52 USITC, hearing transcript, June 15, 2010, 23 (testimony of Fritz Foley, Harvard Business School). 53 Branstetter, Fisman, and Foley, “Do Stronger Intellectual Property Rights Increase International 

Technology Transfer?” 2006, 2; USITC, hearing transcript, June 15, 2010, 22–23 (testimony of Fritz Foley, 

Harvard Business School). 54 USITC, hearing transcript, June 15, 2010, 22–23 (testimony of Fritz Foley, Harvard Business School); 

industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010. 55 As noted in table 2.3, before 2006, the BEA did not collect data on receipts from affiliated businesses, 

so longer-term statistical trends of this data are not discussed. According to a number of scholars, BEA data 

likely underreport the level of receipts of royalties and license fees paid to U.S. parent companies from 

foreign affiliates. Given the very large value of U.S. firms’ foreign affiliate sales, “the reported flows fall far 

short of a full and complete accounting of all the benefits conferred on affiliates by access to the intellectual 

assets of the parent.” This may be the result of underreporting by firms to reduce tax liability, as well as the 

raising of reporting thresholds by BEA for key survey instruments (much of the data collected by BEA is 

based on surveys). Feenstra et al. “Report on the State of Available Data,” August 2010, 22–23. 56 According to USITC hearing testimony, “these figures may seem small compared to total U.S. 

[receipts]; however, these fees are likely to earn high margins for U.S. firms. They also represent a valuable 

source of earnings for the high technology sector in the United States.” USITC, hearing transcript, June 15, 

2010, 21–22 (testimony of Fritz Foley, Harvard Busness School). 57 Market access restrictions by China on copyrighted materials are discussed in chapter 3. 58 Maskus, Intellectual Property Rights, 2000, 120. 59 U.S. investors have complained that weak IPR enforcement in China is an investment barrier. USTR, 

National Trade Estimate 2010, 81. Generally, stronger IPR protection such as patent reforms could lead to 

large increases in FDI. Maskus, Intellectual Property Rights, 2000, 141–42. See chapter 6. 60 China ranked as the 19th-largest recipient of U.S. outbound FDI based on FDI stock levels in 2009. 

USDOC, BEA, International Economic Accounts: “Operations of Multinationals Abroad; U.S. Direct 

Investment Abroad.” 61 Excluding Hong Kong, Taiwan was the leading supplier of FDI based on value, followed by Japan and 

Singapore. MOFCOM, “China’s Absorption of FDI,” (August 2010). 
2-13

0

10,000

20,000

30,000

40,000

50,000

60,000

All Industries Total Manufacturing Total Computers and

Electronics

 Chemicals

Million $

2004 2005 2006 2007 2008 2009

FIGURE 2.5 China: U.S. direct investment stocks, selected sectors and total, historical–cost basis, 2004–09 

Source: BEA.

IP-sensitive industries such as computers and electronics, accounted for about one-half of 

total U.S. FDI in China. This FDI was also relatively small ($23 billion in 2009), 

accounting for just 4 percent of total U.S. manufacturing sector FDI ($541 billion).62 U.S. 

computer and electronic products FDI in China was $5.7 billion in 2009, which 

represented 9 percent of total U.S. FDI in the sector. 

U.S. FDI enters China by two primary channels, either through the establishment of new 

operational facilities (greenfield FDI) or through mergers and acquisitions (M&A).63 

Greenfield FDI is estimated to have been the largest component of U.S. FDI in China 

during the last five years.64 Among a group of IP-sensitive sectors for which data were 

available,65 most greenfield FDI projects during 2006–10 were directed towards setting 

up manufacturing facilities (57 percent), while R&D (33 percent) accounted for most of 

the remainder.66 Reported examples of recent FDI projects in IP-sensitive sectors include 

a semiconductor manufacturing facility launched by Intel (estimated value of $2.5 

billion) in 2007, and reported projects by Microsoft, Oracle, and AT&T during 2006–

10. 67 Reported examples of R&D FDI projects are Pfizer’s estimated $155 million 

biotechnology R&D center in 2010 and Eli Lilly’s estimated $100 million investment in a 

pharmaceuticals R&D facility in 2007.68 

 62 China ranked as the ninth-largest recipient of U.S. manufacturing FDI. USDOC, BEA, “International 

Economic Accounts: Operations of Multinationals Abroad; U.S. Direct Investment Abroad.” 63 Most U.S. FDI is directed to the more economically developed coastal provinces of China, including 

Guangdong and Shandong, as well as the municipalities of Shanghai and Beijing. Financial Times Ltd, fDi 

Markets database. See chapter 5 for more information on indigenous innovation and FDI. 64 There are no official U.S. data categorizing U.S. FDI into China by channel, but comparing privatesector greenfield projects with M&A FDI data from commercial databases suggests that greenfield FDI 

represents the majority of U.S FDI in China. Financial Times Ltd, fDi Markets database; Bureau Van Dijk, 

Zephyr M&A database, July 2010. 65 These IP-sensitive sectors include aerospace (primarily aircraft parts); automotive components; 

biotechnology; chemicals; computers, semiconductors, software, and information technology; electronics; 

industrial machinery; medical devices; pharmaceuticals; and plastics. Financial Times Ltd, fDi Markets 

database. 66 R&D includes design, development, and testing facilities. Other greenfield FDI categorized by 

business activity included headquarters, internet infrastructure, and electricity infrastructure. Financial Times 

Ltd, fDi Markets database. 67 Financial Times Ltd, fDi Markets database. July 2010. Note: the original version of this report also 

cited a semiconductor manufacturing investment by IBM. The Commission has since learned that the 

information was inaccurate. Industry official, email message to USITC staff, December 15, 2010. 68 Financial Times Ltd, fDi Markets database. 
U.S. M&A activity in China appears to be smaller than greenfield FDI in terms of the 

number and value of ventures. In most cases, U.S. M&A activity resulted in the 

acquisition of majority stakes by U.S. firms, including many acquisitions resulting in 

100 percent U.S. ownership. 69 U.S. M&A activity in China spanned a variety of IPsensitive sectors, including computers and semiconductor manufacturing, chemicals, 

pharmaceuticals, and plastics during 2006–10.70 

As noted above, a significant share of U.S. FDI in China has been directed toward R&D. 

Table 2.4 shows selected R&D expenditures by U.S. affiliates in China. Although total 

R&D expenditures by U.S. affiliates nearly doubled to $1.5 billion from 2004 to 2008 

(the latest year for which data are available), these expenditures were relatively small 

compared to total U.S. global R&D expenditures ($37 billion in 2008).71 Reportedly, 

high levels of IPR infringement are a contributing factor to relatively low levels of U.S. 

affiliate R&D expenditures in China.72 

TABLE 2.4 China: Research and development expenditures by U.S. affiliates (million $) 

2004 2005 2006 2007 2008

All industries total 575 668 759 1,141 1,517

Manufacturing total 539 574 590 922 1,180

Computers and electronics 466 (

a

) 453 752 965

Source: BEA. 

 aSuppressed to avoid disclosure of data of individual companies. 

Manufacturing sectors accounted for the highest level of U.S. affiliate’s R&D 

expenditures in China––$1.2 billion in 2008––consistent with the focus on manufacturing 

facilities of most U.S. investors. 73 China thus ranked only seventh in U.S. foreign 

affiliate R&D in manufacturing centers, placing below countries with relatively stronger 

IPR protection, such as the United Kingdom, Germany, and Japan.74 Most R&D in the 

manufacturing sector was directed towards the IP-intensive computer and electronic 

products sectors. 

2-14

 

Despite concerns about IPR infringement and indigenous innovation policies in China 

(discussed in chapters 3-5), U.S. industry representatives have stated that China is a 

critical growth market for U.S. exports and FDI. According to these sources, if U.S. firms 

were to refrain from operating in China, their global competitors would fill the void, 

leading to substantial revenue losses for U.S. companies.75

69 Bureau Van Dijk, Zephyr M&A database. July 2010. 

70 Ibid. 

71 R&D expenditures outside the United States. USDOC, BEA, International Economic Accounts: 

“Operations of Multinationals Abroad; Financial and Operating Data.” 72 Branstetter, Fisman, and Foley, “Do Stronger Intellectual Property Rights Increase International 

Technology Transfer?” 2006, 2; Branstetter and Foley, “Facts and Fallacies about U.S. FDI in China,” 

October 2007, 16–18. 73 Manufacturing sectors include food, chemicals, primary and fabricated metals, machinery, computers 

and electronic products, electrical equipment, and transportation equipment. USDOC, BEA, “International 

Economic Accounts: Operations of Multinationals Abroad: Financial and Operating Data.” 74 USDOC, BEA, International Economic Accounts: “Operations of Multinationals Abroad; Financial 

and Operating Data.” 75 USITC, hearing transcript, June 15, 2010, 251–53 (testimony of Christian Murck, American Chamber 

of Commerce in China; Shaun Donnelly, National Association of Manufacturers; Jeremie Waterman, U.S. 

Chamber of Commerce); industry officials, interviews by USITC staff, May 12, 2010, June 2, 2010, July 2, 7, 

15, and 22, 2010. 
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CHAPTER 3 

Copyright Piracy and Trademark 

Counterfeiting in China 

The costs—and risks—of developing new products that embody copyrights and 

trademarks are often high: a new software operating system, a major motion picture, 

athletic shoes, and the latest consumer electronics can cost millions of dollars to create 

and develop. However, the costs of reproducing imitations of copyrighted and trademarkprotected goods are generally very low. The challenges reported by U.S. firms in dealing 

with copyright piracy and trademark counterfeiting in China resemble each other in the 

wide array of industries affected, the geographic concentrations of infringing activities 

and groups involved, the methods used, and the problems characteristic of administrative 

and judicial enforcement. Copyright piracy is discussed first in this chapter, followed by 

trademark counterfeiting. 

Copyright Piracy in China 

Creative industries contribute significantly to the U.S. economy, and their products 

account for a significant share of U.S. exports. By one estimate, in 2007, U.S. core 

copyright industries added $889 billion in value to the economy (equal to 6.4 percent of 

U.S. gross domestic product (GDP)) and generated $126 billion in exports.1

 Copyrights 

protect products of these industries from unauthorized reproduction, thereby enabling 

U.S. companies to generate revenue from the sale of creative works.2

Over the past decade, technologies that facilitate the distribution, reproduction, and 

consumption of creative works, such as the Internet and MP3 players, have become 

widely available in China. In the absence of well-established domestic creative industries 

or strong institutional copyright enforcement (and in the presence of high demand for 

foreign content), copyrights held by U.S. companies have been infringed or pirated at 

high rates in China.3

 U.S. industry representatives state that copyright enforcement by 

Chinese authorities is not sufficient to deter infringers.4

China’s economy is growing rapidly, a factor that could both promote and deter copyright 

infringement. For the past decade, China has been regarded by governments and firms as 

a major global supplier of pirated goods (based on customs seizures data and other 

information sources).5

 However, the increased purchasing power of China’s consumers is 

 1

 Siwek, “Copyright Industries in the U.S. Economy,” 2009, 3–7. 2

 USITC, hearing transcript, June 15, 2010, 196 (testimony of Robert Holleyman, BSA); USITC, hearing 

transcript, June 16, 2010, 346 (testimony of Michael Schlesinger, IIPA). 3

 Montgomery and Potts, “Does Weaker Copyright Mean Stronger Creative Industries?” 2008, 253. 4

 Industry officials, interviews by USITC staff, Washington, DC, July 1–16, 2010; USITC, hearing 

transcript, June 15, 2010, 8 (testimony of Lee Branstetter, Carnegie Mellon University); USITC, hearing 

transcript, June 16, 2010, 338 (testimony of Chris Israel, PCT Government Relations). As an example of 

minor penalties for copyright piracy, one music industry official reports that damages awarded by civil courts 

to copyright holders against infringing online music providers are typically around $140 per infringed song. 

Industry official, interview by USITC staff, Hong Kong, September 21, 2010. By broad comparison, statutory 

damages in the U.S. range from $750 to $30,000 per infringed work. 17 USC Sec. 504(c). 5

 OECD, “The Economic Impact of Counterfeiting and Piracy,” 2008, 79. 
3-2

making it an important global market for both legitimate and pirated copyrighted goods. 

For example, China is now the world’s second-largest market for personal computers 

(PCs), while its market for licensed PC software is the seventh-largest in the world 

(worth an estimated $2 billion in 2009).6

 This suggests both that software consumption in 

China is high in absolute terms, and that a significant portion of this consumption is met 

through piracy. However, while the overall size of China’s software market is increasing, 

the share of pirated software within that market may be lessening slightly: rising levels of 

per capita wealth are also associated with lower software piracy rates, as consumers are 

more able to afford licensed software and domestic innovators are more likely to demand 

strong IP protections.7

 The Business Software Alliance (BSA) estimates that the PC 

software piracy rate in China decreased from 86 percent to 79 percent from 2005 to 

2009,8

 while China’s per capita gross national income (GNI) increased from $1,740 to 

$3,620.9 According to BSA figures, a software piracy rate of 79 percent is average for 

lower-middle-income countries (such as China), but is high in absolute terms, as rates in 

countries above this income category are as low as 20 percent (United States). 10 In 

addition, the size of China’s software market and the speed with which it is growing 

heighten the impact of piracy there. 

This chapter describes copyright piracy in China, including the industries affected, the 

mechanisms by which piracy occurs, and the groups involved in distributing infringing 

materials. It also discusses recent developments in copyright enforcement in China and 

describes the market access restrictions that contribute to demand for pirated materials.11

Industries Affected by Piracy 

The industries most affected by copyright infringement globally are movies, music, 

business software, entertainment software, and publishing. These core copyright 

industries 12 produce both physical and digital goods, and both forms are subject to 

infringement in China. Physical piracy involves the unauthorized transfer of copyrighted 

materials through the use of media such as CDs, DVDs, hard drives, or flash memory 

drives. Unauthorized copies of written materials may also be printed on paper. The global 

scale of physical infringement is suggested by the 79 million individual CDs, DVDs, and 

cassettes detained for suspected copyright violation by EU customs authorities in 2008, 

68 percent of which originated in China.13

 6

 USITC, hearing transcript, June 15, 2010, 194 (testimony of Robert Holleyman, BSA). 7

 Shadlen et al., “The Political Economy of Intellectual Property Protection,” 2005, 53. For example, one 

study found that a $1,000 increase in GNI per capita is correlated with a 1.01 percentage point fall in 

software piracy rates; see Yang et al., “Global Software Piracy,” 2009, 278. 8

 BSA, “Seventh Annual BSA/IDC Global Software Piracy Study,” May 2010, 15. 9

 The World Bank, World Development Indicators Database. 

10 BSA, “Seventh Annual BSA/IDC Global Software Piracy Study,” May 2010, 15. 11 Definitions of copyright and infringement under Chinese law are provided in chapter 1. 12 Non-core copyright industries are those indirectly affected by copyright infringement, including 

transportation providers; manufacturers of blank CDs and DVDs, CD and DVD players, MP3 players, 

computers, photocopiers, and camcorders; retailers; and Internet and telecom providers. In some instances, 

these industries may be affected by infringement in different ways than the core copyright industries. For 

example, piracy is positively correlated with sales of blank optical discs; see IFPI, “Music Piracy Report,” 

June 2001, 3. 13 European Commission Taxation and Customs Union, “Report On EU Customs Enforcement of 

Intellectual Property Rights,” 2009, 22. Additionally, in fiscal year 2009, U.S. Customs and Border 

Protection (CBP), which quantifies seizures by estimated domestic value, seized an estimated $11 million 

worth of media (including tapes and optical discs), $5.5 million of which originated in China. CBP, 

“Intellectual Property Rights Seizure Statistics: Fiscal Year 2009,” October 2009. 
3-3

Digital products of copyright industries include software, movie, music, and text files 

distributed over telecommunications networks to computers, mobile phones, and other 

devices.14 Digital piracy refers to copyright infringement that does not involve physical 

media.15 The supply chain for infringing digital content may begin, for example, with the 

“hacking” of an entertainment software file within hours of its official release; the file is 

then uploaded to a file-sharing network.16 The scale of global digital infringement is 

difficult to calculate. However, in just one example, media measurement company 

BigChampagne estimated that the movie Watchmen was offered by peer-to-peer (P2P) 

users 17 million times worldwide in the first six months of 2009.17 The popular PC game 

Call of Duty: Modern Warfare 2 is reported to have been shared on P2P networks 4.1 

million times in 2009 (compared to about 300,000 retail sales of the game).18

The copyright industries include a substantial number of small and medium-sized 

enterprises (SMEs). For example, small software developers are common in both the 

business software and video game industries. SMEs report facing additional challenges in 

seeking to enforce their copyrights: they often do not have the resources to conduct 

investigations into potential infringement, and pursuing legal action through the court 

system is more cost-prohibitive for them than for larger firms.19 In addition, many smaller 

companies in the copyright industries distribute their products digitally. For instance, 

thousands of individual software developers create downloadable applications for mobile 

phones20 and publish online games. Through digital distribution, a copyright holder may 

enter a market, such as China, without having any physical presence in that market. 

Enforcement against digital piracy can be particularly challenging due to the existence of 

decentralized global networks for infringing files, 21 and these challenges are likely 

compounded for companies that have no physical presence in the Chinese market. 

Where and How Piracy Occurs 

Physical Piracy 

Infringing physical media are produced and consumed throughout China. Organized, 

large-scale production and distribution of infringing optical discs is especially common in 

the southern cities of Guangzhou and Shenzhen, which have been targeted by Chinese 

 14 Mobile phones are an increasingly important way of consuming digital content; in 2007, an estimated 

50 million mobile phone subscribers in China used their phones to access the Internet. CNNIC, “Statistical 

Survey Report on the Internet Development in China,” January 2008, 13. Additionally, 2006 revenues for 

ringtones and other music used on mobile phones in China reached $703.2 million. See Yan, “Music Phone 

Wins But Mobile Music Loses in China,” April 2007. 15 See OECD, “Piracy of Digital Content,” 2009, 12. “Digital” can also refer to the format in which 

media is stored, and in this respect physical products like CDs and DVDs are “digital”; however, for purposes 

of this report, “digital piracy” is used to refer specifically to piracy that happens via computers, the Internet, 

and mobile devices. 16 Industry official, telephone interview by USITC staff, July 15, 2010. 17 Greenberg, “The Year’s Most Pirated Videos,” August 5, 2009. Lawrence, “Bursting BigChampagne’s 

Bubble,” May 19, 2003. However, Lawrence points out that the popularity of files uploaded does not 

necessarily reflect the popularity of files downloaded. 18 Plunkett, “Report: The Most Pirated Games of 2009,” December 28, 2009. The console version sold 

6 million copies and was downloaded 970,000 times, reflecting the greater difficulty in pirating console 

games due to the need to transfer the infringing file to a game cartridge or disc; see McWhertor, “Report: 

Modern Warfare 2 PC U.S. Retail Sales about 170,000 in November,” December 14, 2009. 19 USITC, Small and Medium-Sized Enterprises, July 2010, 3–15. 20 NetCoalition and CCIA, “Response to the Intellectual Property Enforcement Coordinator,” 

March 2010, 33. 21 OECD, “Piracy of Digital Content,” 2009. 
3-4

authorities as major sources of infringing materials.22 For example, a 2007 seizure of 

1.6 million pirated discs in Guangzhou found 30 production machines in 11 warehouses, 

which could produce an estimated 300,000 pirated discs per day. 23 Entertainment 

software industry representatives indicate that video game copiers that facilitate the 

transfer of video games from the Internet to a game cartridge also are widely available in 

Guangzhou and Shenzhen and distributed from there to retail markets and shops 

throughout China.24 Similarly, an industry report indicates that Guangzhou and Shenzhen, 

along with the northern Chinese city of Jinan, are major distribution hubs for video game 

consoles, the sale of which is illegal in China.25 Distribution of illegal consoles leads to 

increased demand for infringing games, because licensed games for these consoles are 

not typically distributed in China.26 Small-scale commercial production of pirated goods 

for local markets is also possible with inexpensive equipment, such as stand-alone DVD 

burners. The decreasing cost of this type of reproduction technology widens the 

production base of pirated goods and makes detection of suppliers more difficult.27

Infringing copies of academic textbooks are commonly found in and around universities 

throughout China. In 2007, the Chinese government imposed a fine of $12,000 on Tongji 

Medical College after finding thousands of copyright-violating textbooks in the college’s 

textbook store.28 Recent advances in digital scanning technology have facilitated highquality photocopies of copyright-protected books, often indistinguishable from the 

originals. 

Digital Piracy 

Digitally infringing files (e.g., software, movie, and music files) are produced, 

distributed, and consumed through decentralized global networks. One industry 

representative estimates that a large share (perhaps 80 percent) of music piracy in China 

is digital, as demand for unauthorized physical copies is being displaced by the 

availability of pirated music online. 29 Similarly, the movie industry reports that the 

majority of its enforcement efforts in China are now focused on Web sites that distribute 

pirated content.30

The availability of digitally infringing files is correlated with overall Internet use. In 

China, the number of Internet users has grown at an average annual rate of 39 percent 

since 2001,31 reaching an estimated 384 million users in December 2009.32 Broadband 

penetration rates are about 28.7 percent in China (compared to an average world rate of 

26.6 percent and a U.S. rate of 76.3 percent),33 with the highest penetration rates in 

Beijing and Shanghai (46.6 percent and 45.8 percent, respectively, in 2007).34 Internet 

 22 USTR, 2007 Special 301 Report, 2007, 47. 23 Xinhua News Agency, “China Cracks Largest Ever CD, DVD Piracy Case,” April 4, 2007. 24 Industry official, e-mail messages to USITC staff, July 29–August 3, 2010. To assist enforcement 

efforts in these areas, there is now an optical disc forensics lab in Shenzhen, which helps identify the sources 

of infringing discs. Industry official, interview by USITC staff, July 1, 2010. 25 Niko Partners, “2010 Annual Review and Five-Year Forecast Report,” April 2010, 45. 26 Industry official, interview by USITC staff, July 16, 2010. 

27 OECD, “The Economic Impact of Counterfeiting and Piracy,” 2008, 273. 28 AAP, “U.S., U.K. Publishers Applaud Chinese Crackdown on Textbook Piracy,” January 17, 2007. 29 Industry official, interview by USITC staff, Hong Kong, September 21, 2010. 30 Industry official, telephone interview by USITC staff, October 1, 2010. 31 Internet World Stats, “China: Internet Usage Stats and Population Report.” 32 CNNIC, “Internet Fundamental Data (by June 30, 2010),” retrieved July 10, 2010. 33 Internet World Stats, “China: Internet Usage Stats and Population Report.” 34 CNNIC, “Statistical Survey Report on the Internet Development in China,” January 2008, 14. 
3-5

cafés are widespread in China, especially in rural areas, and it is reported that pirated 

versions of entertainment software are commonly pre-installed on café computers.35 The 

Entertainment Software Association estimates that 240,000 Internet cafés in China use 

unlicensed or pirated copies of entertainment software.36 

Digital content is frequently distributed through P2P networks, “cyberlockers,” or media 

streaming. 37 P2P users typically install free software that allows computers to 

simultaneously download and upload content, and central Web sites provide search 

indices to help locate specific files on the computers of other users. P2P networks can 

include millions of computers distributed globally. Cyberlockers allow one user to store 

content on servers and then permit other users to access that content via hyperlinks. 

Streaming audio or video media is sent continuously in compressed form over the 

Internet to users who play or display the content in real time.38 Examples of digital 

distribution methods popular in China include Xunlei and verycd (P2P); Rafile and 

91files (cyberlockers); and Tudou and Youku (video streaming). In 2009, the top 10 

search terms on Baidu, China’s leading search engine, included both Youku and Xunlei.39

Although infringing activity is believed to predominate, these methods also have legal 

applications, such as distributing open source software or public domain video.40 One 

movie industry representative reports that, in the past year, there has been an effort on the 

part of some of the larger Chinese video Web sites to move toward distributing legal 

content.41

Search engines such as Baidu and Sohu also play a role in facilitating digital piracy by 

providing “deep links,” or search results that link to third-party sites that contain 

infringing content; Pali Research estimated that 80 percent of all searches on Baidu in 

2009 were for music files.42 However, the legal liability of search engines for infringing 

content is contested. In 2010, a Beijing court, ruling on a lawsuit filed against Baidu and 

Sohu by members of the International Federation of the Phonographic Industry, found 

that Sohu was liable for copyright infringement, while Baidu was not. Baidu, unlike 

Sohu, reportedly removed links to sites with infringing content after receiving 

notification from content owners.43

Physical and digital distribution methods often overlap. Movies recorded in theaters can 

be transferred as digital files over the Internet and then burned onto optical discs. Web 

sites can be used to sell pirated physical goods such as software and video game 

 35 Industry official, telephone interview by USITC staff, July 15, 2010. 36 ESA, “IP Issues Map.” 

37 IIPA, written submission to the USITC, June 3, 2010, 5. 38 Other digital distribution methods include File Transfer Protocols, specialized newsreader clients like 

Usenet, and real-time communication protocols like Internet Relay Chat. 39 Fu, “Top 10 Keywords in China 2009,” December 28, 2009. 

40 It is difficult to measure the share of total digital infringement facilitated by each distribution method. 

The network traffic monitoring company Sandvine estimates that from 2008 to 2009 streaming traffic as a 

share of total global bandwidth usage increased from 12.6 percent to 26.6 percent, while P2P traffic declined 

from 31.6 percent to 20.4 percent. One possible reason is that P2P downloads have more risk of malware 

compared to media streaming. See Sandvine, “2009 Global Broadband Phenomena,” January 13, 2010. 41 Industry official, telephone interview by USITC staff, October 1, 2010. 42 Farley, “Questioning Baidu’s SEC Filings,” September 10, 2009. 43 Chan, “PRC’s Baidu/Sohu Judgments Set Copyright Precedent,” July 29, 2010. This distinction is 

referenced in Article 23 of the Regulation on Protection of Right to Network Dissemination of Information, 

which limits the liability of search engines that link to sites with infringing content, and was the basis for the 

court decision. 
3-6

cartridges; in 2009, Nintendo noted that infringing physical versions of its games were 

available through Chinese Web sites to consumers worldwide.44

Contributors to Piracy 

This section provides an overview of the ways in which four particular groups—criminal 

groups, business enterprises, universities, and consumers—contribute to the distribution 

of pirated materials in China. Each of the first three groups has a notable role in the 

distribution of pirated physical goods. Consumers, meanwhile, contribute to the 

distribution of infringing digital files through online networks. Specifically, 

 Criminal groups engage in the production of high-quality infringing 

optical discs for export. 

 Business enterprises often install more copies of software on their 

computers than legally permitted, in violation of their license 

agreement with the copyright holder. 

 Universities and surrounding bookstores commonly copy and sell 

textbooks and other academic materials. 

 Consumers increasingly distribute infringing files over P2P networks 

and other online services as Internet use rises in China. 

This section is not intended to serve as an exhaustive list of all types of entities that 

reportedly contribute to piracy, but rather as a means of highlighting notable 

characteristics of copyright infringement in China. 

Criminal Groups 

Organized criminal groups in China reportedly are involved in the production of pirated 

products,45 especially the commercial-scale copying of infringing optical discs. Criminal 

groups have the necessary resources to invest in large, centralized production facilities 

and the means to obtain reproducible versions of in-demand media.46 As a result, copies 

produced by large-scale criminal groups may be particularly close imitations of the 

authentic product, incorporating features such as holograms that mimic those found on 

the original. When the packaging and other details on these copies so closely imitate the 

authentic version, it is likely to mislead even customers specifically seeking the authentic 

product.47 Consequently, high-quality copies produced on a commercial scale often reach 

export markets. 

For example, in 2008 a Chinese court convicted 11 members of a criminal organization 

that produced pirated versions of Microsoft Windows and Office software and assembled 

the discs in high-quality counterfeit packages, making the copies virtually 

indistinguishable from the authentic products. The investigation involved cooperation 

between the U.S. FBI and China’s Ministry of Public Security under the code name 

“Operation Summer Solstice.” The criminal group was able to target export markets 

 44 Business Wire, “Nintendo Asks U.S. Trade Representative to Help Combat Global Video Game 

Piracy,” February 25, 2009. 45 Treverton et al., Film Piracy, Organized Crime, and Terrorism, 2009, 48. 46 OECD, “The Economic Impact of Counterfeiting and Piracy,” 2008, 271. 47 Industry official, interview by USITC staff, July 15, 2010. 
3-7

effectively, and reportedly had global sales exceeding $2 billion. Those convicted 

received jail terms of about 6 years. 48

Business Enterprises 

Business enterprises are a significant source of business software piracy in China due to a 

practice known as “underlicensing.” Underlicensing occurs when a business installs 

legitimate software on more computers than is legally permitted under the terms of its 

license from the copyright owner. Microsoft founder Bill Gates has suggested that China 

is unique in that even some of its largest global enterprises intentionally use 

underlicensed software. 49 A particular area of concern is the use of underlicensed 

software by China’s state-owned enterprises (SOEs), given that these enterprises 

comprise a significant portion of the market for business software. The business software 

industry reports that, while the government established a plan in 2006 to fully license the 

software used by SOEs, to date no mechanism has been established to ensure SOEs’ 

compliance with these commitments.50 Because of the growth of the Chinese market for 

business software in recent years, industry groups presently identify underlicensing 

among enterprises as the “principal and most damaging form of infringement to the 

business software industry.”51 This is in contrast to the enforcement focus just five years 

ago, when business software companies were primarily focused on stopping the export of 

high-quality pirated optical discs from China.52 

Enforcement against enterprises often involves consultation between the rights holder and 

the business in order to persuade the business to purchase software licenses.53 If these 

consultations are not effective, the copyright holder must decide whether to pursue a civil 

case, since enterprise end-user piracy generally is not viewed by the authorities as a crime 

in China.54 Microsoft, for example, won a 2010 civil case against Dazhong Insurance 

Company (a company largely held by SOEs). In that case, a Shanghai court ordered 

Dazhong to pay $318,000 in damages to Microsoft for its use of approximately 900 

unlicensed copies of Windows and Office software.55 Microsoft called the case, which 

represented the company’s first attempt to challenge underlicensed Chinese enterprises in 

the civil court system, its “biggest legal victory in China.”56 Given that the business 

software industry considers underlicensing to be so pervasive, it is likely that such cases 

will continue to be a focus of its enforcement efforts in China. 

Universities and Libraries 

Universities, libraries, and the communities surrounding them are a key source of 

publishing industry piracy in China. Academic books, especially high-value textbooks, 

are often photocopied and sold to students. 57 Some of these copies are very close 

 48 Barboza, “Chinese Court Convicts 11 in Microsoft Piracy Case,” December 31, 2008. 

49 Evans, “Global CIO: Bill Gates Blasts China over Corporate Software Piracy,” September 25, 2009 

(accessed August 16, 2010). 50 IIPA, written submission to the USITC, July 9, 2010, 10. 

51 Ibid., 7. 

52 Industry official, interview by USITC staff, July 15, 2010. 

53 Ibid. 

54 IIPA, written submission to the USITC, July 9, 2010, 9. According to IIPA’s written submission, the 

Supreme People’s Court indicated in 2007 that distribution of protected software in itself qualifies as a crime. 

To date, however, enforcement authorities in China reportedly do not accept this position. 55 Arent Fox LLP, “Two Interesting IP Victories in China.” 

56 Chao, “China Company Plans to Appeal Microsoft Decision,” April 23, 2010. 57 IIPA, written submission to the USITC, July 9, 2010, 7. 
3-8

reproductions of the original, with nearly identical covers and similar quality.58 The shops 

producing these copies may be located on or near campuses (such as in the case of Tongji 

Medical College mentioned above); there have reportedly been instances in which 

production facilities are operated by the universities themselves.59 In some cases, these 

copy shops are sophisticated business enterprises—reportedly, the most advanced “have 

stock lists of materials available, keep warehouses filled with merchandise, and use bar 

codes to organize inventory.”60 The problem also extends to libraries, which may “stock 

copies of illegally reproduced textbooks and reference books for use by patrons.”61

Consumers 

Internet-based distribution of pirated materials by consumers is a growing problem in 

China. Globally, digital piracy of music, movies, and video games is often driven by 

demand from Internet users who supply pirated materials in exchange for access to other 

infringing materials. For example, many P2P networks allow access only on the condition 

that consumers make their own files available for download by other network members.62

In other cases, suppliers of infringing digital content require payment for access or earn 

revenue from advertising. 

There is little specific information on the demographics of Chinese Internet users who 

access pirated materials. However, recent survey data on the characteristics of China’s 

total base of Internet users, and the ways in which they access digital content, may be 

suggestive. In 2007, the China Internet Network Information Center estimated that 

58 percent of Chinese Internet users were male, 32 percent were aged 18 to 24, and 

75 percent lived in urban areas. Sixty-seven percent of Chinese Internet users accessed 

the Internet with home computers, while 34 percent used Internet cafés (some used both). 

Internet cafés were mostly used by young people and rural people (48 percent of rural 

users used Internet cafés). Once online, 87 percent of Chinese Internet users used “online 

music” applications, while 77 percent used “online video” applications. Seventy-one 

percent of total users had downloaded music in the last six months, while 22 percent had 

downloaded videos and an additional 44 percent had viewed videos on Web sites. Users 

in Beijing and Shanghai had the highest music downloading rates, and video 

downloading rates were highest among the highly educated. 63 The survey did not 

distinguish among these downloads based on copyright status. It is believed, however, 

that most such downloading is of copyrighted files.64

Copyright Enforcement Overview 

Copyright enforcement in China typically occurs through one of four different 

mechanisms: antipiracy campaigns, administrative enforcement, civil court cases, and 

 58 Trade Lawyers Advisory Group, “The Crisis in Intellectual Property Protection,” May 2007, 56. 59 Schroeder, statement to the House Committee on Ways and Means, Subcommittee on Trade, 

February 15, 2007, 2. 60 Trade Lawyers Advisory Group, “The Crisis in Intellectual Property Protection,” May 2007, 56. 61 IIPA, written submission to the USITC, July 9, 2010, 19; see also Hull, “Publishing in China,” 

July 2009. 62 This creates unusual market dynamics; unlike other distributors of pirated materials, consumers on 

these networks may be motivated by social recognition instead of profit. OECD, “Piracy of Digital Content,” 

2009, 25. 63 CNNIC, “Statistical Survey Report on the Internet Development in China,” January 2008, 15, 17, 20, 

31–32, 42, 55–56, and 79. 64 IIPA, written submission to the USITC, July 9, 2010, 11, 13 (estimating that 99 percent of music 

digitally accessed was unlicensed). 
3-9

criminal court cases. Table 3.1 summarizes key information about each of the four types, 

which are described in greater detail below. 

First, Chinese authorities may undertake large-scale raids in connection with the 

government’s antipiracy and anti-pornography campaign. While this campaign seeks to 

curb the sale of both pirated and pornographic materials, in 2009, 86 percent of the items 

were seized on piracy rather than pornographic grounds, according to the Chinese 

government.65 These enforcement raids are mostly led by local Public Security Bureaus at 

the direction of the central government.66 The campaign may be directed to coincide with 

major events that are likely to become venues for piracy; in early 2010, the government 

announced special extensions of the campaign aimed at reducing piracy in connection 

with the World Expo in Shanghai.67 Enforcement actions during campaigns “usually 

result at most in administrative fines; criminal punishments are exceedingly rare, even 

 65 SIPO Web site, http://www.sipo.gov.cn/sipo_English/ (accessed August 6, 2010). 66 Dimitrov, Piracy and the State, 2009, 231; Chinese government, “China to Launch new Campaign 

against Piracy,” July 13, 2006. 67 MOFCOM, “Beijing Launches Special Campaign against Piracy,” March 30, 2010. 

TABLE 3.1 Summary of copyright enforcement mechanisms

Type of 

enforcement 

Primary Chinese 

government agency 

responsible 

Common requestor(s) 2009 statistics 

Antipiracy 

campaign 

Local Public Security 

Bureaus (at the 

direction of the central 

government) 

None—enforcement is 

conducted at the 

discretion of the central 

government. 

Approximately 57 million individual 

items were seized on antipiracy 

grounds during the campaign. 

Administrative 

enforcement 

NCAC Domestic copyright 

holders. 

Not available. In 2006, the most 

recent year for which data are 

available, there were over 10,000 

administrative copyright cases, of 

which just 1.1 percent were initiated 

by foreign parties. 

Civil courts Civil court system Foreign and domestic 

copyright holders. This is 

the most common type of 

enforcement pursued by 

foreign copyright holders. 

15,302 new copyright cases were 

initiated.a 

Criminal courts Criminal court system Cases may be the result 

of investigations by law 

enforcement officials or 

may result from 

administrative 

proceedings. 

3,014 cases were closed across 

various forms of IP (not limited to 

copyright).b 

Sources: SIPO, China IPR Annual Book 2009, 2010; SIPO, “China’s Intellectual Property Protection in 2009,” 2010; 

SIPO Web site (accessed August 6, 2010); Dimitrov, Piracy and the State, 2009. 

 aThe total number of civil court IP cases involving a foreign party was 1,361. The proportion of these that were 

copyright cases is not available, although the Supreme People’s Court reports that copyright cases generally 

represent the largest caseload among all civil IP matters. 

 bThe proportion of criminal IP cases relating specifically to copyright is not available, although most sources 

report that criminal copyright cases in China are relatively rare. The number in the table excludes criminal cases 

specifically listed as trademark counterfeiting cases. It includes all cases for which the type of IP infringement was 

not listed. 
3-10

when the relevant criminal liability thresholds have been met.” 68 As a result, these 

centrally directed campaigns may have limited deterrent effect. 

Second, there is the system of administrative enforcement. While many agencies in China 

have some responsibility for copyright enforcement, primary responsibility for 

administrative enforcement lies with the National Copyright Administration of China 

(NCAC). The NCAC has local offices throughout China that handle administrative 

enforcement within their jurisdictions, including conducting raids and assessing fines. 

However, administrative enforcement from the NCAC can reportedly be difficult for 

copyright holders to obtain. The NCAC has stated that it is more focused on education 

than on enforcement69 and has encouraged copyright holders to use the civil court system 

instead, on the grounds that they are understaffed.70 In addition, research suggests that the 

NCAC may be “especially unwilling to provide raids when foreign companies seek its 

assistance.”71 Finally, the cost of administrative enforcement has been rising and is now 

on par with that of pursuing a civil court case in many instances.72

A third venue for enforcement is the civil court system. Administrative enforcement 

typically offers quicker resolution than a civil court case, but due to the limitations of the 

administrative system described above and in chapter 1, civil court cases have become a 

more attractive alternative.73 In particular, some foreign copyright holders report that they 

place less reliance on the administrative system and have instead turned to the civil courts 

to enforce their copyrights. 74 Copyright cases represent the largest category of IPRrelated civil court cases; in 2009, the number of civil copyright cases accepted by 

Chinese courts rose nearly 40 percent from the prior year and was more than double the 

figure from 2005.75 

Fourth, there is the system of criminal enforcement. Criminal cases may result from 

administrative proceedings or may be investigated independently. Criminal copyright 

cases are rare in China, but can be effective.76 High-profile cases involving criminal 

copyright prosecutions include the “Tomato Garden” case (see below) and the cases 

resulting from the “Operation Summer Solstice” investigation (see above), both involving 

piracy of Microsoft software. 

Recent Trends in Copyright Enforcement 

This section provides information on three recent enforcement trends driven by Chinese 

policymakers and courts. While U.S. industry representatives generally report that 

stronger, more consistent copyright enforcement is needed in China, these three trends 

suggest that the Chinese government is, at least in some instances, willing to adopt new 

 68 Dimitrov, Piracy and the State, 2009, 232. 69 Ibid., 234. 

70 U.S. Department of State, U.S. Embassy, Beijing, “IPR Toolkit” (accessed August 11, 2010). 71 Dimitrov, Piracy and the State, 2009, 235. 72 Ibid. 

73 See chapter 1. 

74 Industry official, telephone interview by USITC staff, August 30, 2010. By contrast, in the movie 

industry copyright holders often use administrative measures to obtain temporary closure of retail shops 

selling pirated DVDs. Administrative procedures may allow authorities to close these shops on the basis of 

operating an unauthorized business. Industry official, telephone interview by USITC staff, October 1, 2010. 75 SIPO, China IPR Annual Book 2009, 2010; SIPO, “China’s Intellectual Property Protection in 2009,” 

2010; see also figure 1.1. 76 Industry official, interview by USITC staff, Hong Kong, September 21, 2010. 
3-11

methods to address piracy. It remains to be seen whether these recent trends are 

indicative of a sustained effort by Chinese officials to reduce piracy. 

The Chinese government requires computers shipped to Chinese customers to come 

pre-loaded with a licensed operating system. This requirement took effect in 2006, and 

one industry representative estimates the percentage of PCs shipped with legal software 

increased from 20 percent to more than 40 percent by 2007. 77 However, industry 

representatives report two weaknesses in this measure: first, it is possible to load a 

computer with an inexpensive or free operating system, then replace it with a pirated 

copy of a higher-value operating system once the computer leaves the factory. One 

industry representative suggests that this may happen as often as 50 percent of the time.78

Second, smaller, non-branded computer builders known as “white box” manufacturers 

are exempt from the requirement.79 Computers from white box manufacturers capture 

20 to 25 percent of the market in China.80 Still, most sources acknowledge a modest 

decline in the software piracy rate in China in recent years, and some credit the operating 

system requirement for part of the improvement.81

There is a growing body of Chinese case law addressing Internet-based 

infringement. In the past few years, Chinese courts have ruled on several high-profile 

cases involving Internet-based piracy. In 2009, the Huqiu District People’s Court in 

Suzhou ruled that operators of the “Tomato Garden” Web site violated copyrights 

belonging to Microsoft by providing online access to pirated Windows software (the 

software’s authentication functions had been disabled by Tomato Garden). As a result, 

the illegal income of the company that provided access to Tomato Garden (Chengdu 

Gongruan Network Technology Co.) was seized, the company was fined $1.23 million, 

and two individuals were sentenced to jail for three and a half years and fined $147,000.82

This case was also significant because it involved criminal prosecution of the site’s 

operators rather than more common civil litigation or administrative enforcement. Also in 

2009, the Graduate Management Admission Council (GMAC) won a civil court ruling in 

Beijing against Beijing Passion Consultancy, the operators of a Web site that provided 

access to copyright-protected test questions to students taking the Graduate Management 

Admissions Test (GMAT). The case was settled through civil court mediation and 

resulted in compensation of $76,000 for GMAC.83 

Chinese officials have reportedly strongly enforced copyrights in cases that affect 

national interests, such as during the 2008 Olympic Games. By some accounts, China 

strongly enforced copyrights relating to online broadcasts of the Beijing Olympics. A 

group of organizations, including China Central Television (CCTV), NBC, and the 

International Olympic Committee, used digital “fingerprinting” technology from U.S.-

based Vobile Inc. to automatically scan Web sites in search of unofficial videos.84 On the 

enforcement side, a rapid response mechanism established jointly by the NCAC, Ministry 

of Public Security, and Ministry of Industry and Information Technology reportedly shut 

down or blocked 84 sites and ordered another 33 sites to stop infringing on broadcast 

 77 Kirkpatrick, “How Microsoft Conquered China,” July 17, 2007. 

78 Industry official, interview by USITC staff, July 15, 2010. 

79 IIPA, written submission to the USITC, July 9, 2010, 10. 

80 Ibid. 

81 BSA, “Seventh Annual BSA/IDC Global Software Piracy Study,” May 2010, 15; industry official, 

interview by USITC staff, July 1, 2010. 82 Foley and Lardner LLP, “2009–2010 Top Ten Chinese IP Cases,” 2010. 83 Damast, “Crackdown on China GMAT Cheating,” December 3, 2009. 

84 Burrows, “Why China Is Finally Tackling Video Piracy,” June 9, 2008. 
3-12

copyrights.85 Notably, NBC had made coverage of the Olympic Games globally available 

through legal outlets, including broadcast and cable television, video on demand, mobile 

phones, and live event coverage at NBColympics.com.86 The widespread availability of 

legal broadcasts of the games likely reduced demand for unauthorized videos. Still, the 

Chinese government’s success in protecting IP relating to the Olympic Games has led 

some observers to remark that “China, if it wishes to . . . has the capacity to wipe out 

piracy or counterfeiting of basically any product that it decides to.”87 Others have noted, 

however, that the success of this specific effort over a limited time period does not 

guarantee that replicating this success on a broader scale would be feasible or accepted as 

a top priority by Chinese authorities.88

The Impact of Market Access Restrictions 

Market access restrictions and copyright infringement are closely linked because the 

absence of a legitimate market creates additional demand for pirated versions of 

copyrighted works. For instance, the sometimes lengthy content review process for 

legitimate video games and music means that pirated versions often make it into the 

Chinese market first, displacing sales of authentic copies. 89 Likewise, in the movie 

industry, China’s limit of 20 foreign films for theatrical distribution each year means that, 

until a film is officially released on DVD, there is no authorized version available. 

Chinese consumers’ immediate demand for these films can therefore be filled only by 

pirated copies (often obtained through the camcording of the film in other countries’ 

theaters). 

A significant market access barrier in copyright-intensive industries is China’s system of 

content review. All films, publications, music, and home entertainment products must be 

reviewed for prohibited content before they may be released in China. Copyrighted 

content may be blocked from entry due to political considerations; for example, access to 

the iTunes online music store site was blocked in China for two weeks in August 2008 

due to the presence of an album containing pro-Tibet songs.90 Media may also be blocked 

for excessive violence or other objectionable content.91 

Another market access barrier in copyright industries is China’s restriction on foreign 

distribution of certain media. As noted above, in the movie industry, only 20 foreign 

films are generally approved for theatrical distribution in China each year under a 

revenue-sharing model, per the terms of China’s accession to the WTO. In addition, in 

some copyright-intensive industries, foreign companies presently must have Chinese 

partners to distribute their content. 92 For example, foreign music companies must 

collaborate with a Chinese partner in order to acquire a publishing number, which is 

necessary for distributing music. The Chinese government also stipulates that only SOEs 

 85 SIPO, “China’s Intellectual Property Protection in 2008,” April 27, 2009. 86 Whitney, “NBC Faces Olympic Pirates,” August 11, 2008. 

87 USITC, hearing transcript, June 16, 2010, 391 (testimony of Michael Schlesinger, IIPA). 88 For further discussion, see Yu, “Three Questions That Will Make You Rethink the U.S.-China 

Intellectual Property Debate,” 2008. 89 Industry official, telephone interview by USITC staff, July 15, 2010; industry official, interview by 

USITC staff, Hong Kong, September 21, 2010. 90 Fletcher, “China Blocks iTunes over All-star Tibet Album Free Download,” August 22, 2008. 

Reportedly, China lifted the general block on iTunes while continuing to block access to the album. Van 

Buskirk, “China Reinstates: iTunes Access-minus Songs for Tibet,” August 26, 2008. 91 Industry official, telephone interview by USITC staff, July 15, 2010. 92 Montgomery and Potts, “Does Weaker Copyright Mean Stronger Creative Industries?” 254; industry 

official, telephone interview with USITC staff, July 15, 2010. 
3-13

can distribute music over the Internet.93 Several of these measures were successfully 

challenged by the United States in a recent WTO case (see box 3.1). 

In the entertainment software industry, an additional market access barrier is China’s 

previously mentioned ban on game consoles, which has been in place since 2000.94

Despite the ban, consoles are popular in China, but they enter only through illegal 

channels. Marketing of legitimate games is limited, so there is a thriving market for 

pirated games that are played on these consoles.95 Pirated games can be played through 

the use of one of two devices: “game copiers” or “mod chips.” Game copiers facilitate the 

transfer of game files from the Internet to a game cartridge, while mod chips are installed 

inside a console to allow the console to play pirated discs. One entertainment software 

company indicated that the growing use of game copiers in China was particularly 

worrisome, since game copiers provide a direct mechanism for using all of the infringing 

files available on the Internet.96

Foreign Industry Strategies for Operating in a High-Piracy Market 

Some U.S. content companies have adopted strategies that may help build a market for 

their products, notwithstanding high rates of copyright infringement. Such strategies may 

mitigate some of the harm done by copyright infringement and allow content holders to 

better access at least a portion of the large Chinese market. In addition, some U.S. content 

companies maintain their presence in China, despite losses from piracy, in order to 

influence the long-term development of trends and tastes and/or to be in a position to 

benefit if copyright enforcement improves. 97 That some copyright holders find it 

 93 USTR, “2009 National Trade Estimate Report on Foreign Trade Barriers,” 2009, 114. 94 Industry official, interview by USITC staff, July 16, 2010. The ban has the stated goal of protecting 

minors, although PC video games are legal. 95 Industry official, interview by USITC staff, July 16, 2010. 

96 Ibid. 

97 Industry official, interview by USITC staff, June 21, 2010. 

BOX 3.1 China—Resolution of WTO Challenge to Certain Market Access Measures in China (DS363) 

In 2007, the United States filed a complaint under the WTO dispute settlement provisions alleging that various 

Chinese measures—ones that reserve trading rights for certain publications and audiovisual entertainment products 

to Chinese state-designated and wholly or partially state-owned enterprises, as well as others that impose market 

access restrictions or discriminatory limitations on foreign service providers seeking to engage in the distribution of 

publications and certain audiovisual home-entertainment (AVHE) products—are inconsistent with China’s WTO 

obligations. 

In a report circulated on August 12, 2009, the dispute settlement panel concluded that certain measures were 

inconsistent with China’s WTO obligations because they restricted the right of foreign enterprises and individuals in 

China to import reading materials, films, AVHE products, and sound recordings. The panel further found that various 

Chinese measures imposing requirements relating to registered capital and operating terms for the distribution of 

reading materials were also inconsistent with WTO obligations. 

China and the United States appealed aspects of the panel report to the WTO Appellate Body. In a report circulated 

on December 21, 2009, the Appellate Body upheld most of the panel’s conclusions. The Appellate Body report was 

adopted by the DSB at its meeting on January 19, 2010. China has agreed to implement the recommendations and 

rulings of the DSB by March 19, 2011. In light of these events, some of the distribution restrictions mentioned above 

may change in the near future. It should be noted that this decision pertains to China’s import and distribution 

restrictions, not to its content restrictions or to its limit on the number of foreign films for theatrical distribution. 

Source: USITC, The Year in Trade 2009, 2010.
3-14

worthwhile to use such strategies despite high rates of infringement underscores the 

importance of the Chinese market to U.S. firms. 

High rates of copyright infringement generally place downward pressure on prices for 

legitimate copyrighted goods, and many content companies lower prices on legitimate 

versions of goods in order to compete with pirated versions.98 For example, in 2006 

Warner Brothers started selling DVDs in provincial Chinese cities for about $1.85,99 and 

the company also offers 60-cent movie downloads in a venture with Beijing-based 

Voole.100 In 2008, Microsoft reduced the price in China of its Office 2007 Student and 

Home Edition from about $102 to $29.101 Even with lower prices, legitimate works of 

authorship still cost more than pirated versions (a pirated copy of Office 2007 cost an 

estimated $1.50 in 2008102), but they can have substantial advantages over illegitimate 

copies. For example, legitimate movie DVDs are less likely to be low-quality camcorder 

versions, to have inaccurate subtitles or translated dialogue, or to be movies other than 

the movie listed on the package. Authentic software also may be less susceptible to 

malware than pirated software. 

In some industries, firms and individuals may sell complements to copyrighted works—

for example, musicians can earn revenue from live performances, which are complements 

to recorded music. 103 Widespread distribution of creative works, including through 

piracy, may increase these works’ popularity, thereby expanding the market for such 

complements. However, market access and censorship issues can limit the ability of U.S. 

musicians to leverage their popularity gains from piracy in China.104 For example, China 

has canceled Bob Dylan concerts for being “countercultural,” blocked Oasis from touring 

due to the band’s appearance at a Tibetan freedom concert,105 and canceled shows by JayZ because of “vulgar lyrics.” 106 Other examples of content-owning firms selling 

complements include entertainment software firms, which offer free downloads of their 

games but require payment for virtual accessories.107 

Another business model that can be effective in environments with high piracy rates is to 

offer subscription-based access to copyrighted works. Many massively multiplayer online 

games, for example, charge monthly subscription fees and/or require prepaid game cards 

instead of one-time payments for software. Such games are amenable to subscription 

pricing because players need to access the game developer’s server in order to play online 

games against other users. One example is World of Warcraft, developed by California-

 98 Bae and Choi, “A Model of Piracy,” September 2006. However, it may be difficult to quantify price 

effects attributable only to IP infringement in the context of exchange rate effects, income levels, and other 

factors. 99 AP, “China’s Anti-Piracy War,” July 7, 2006. 

100 Cheng, “Warner Bros. to Fight China Movie Piracy with 60 Cent Downloads,” November 5, 2008. 101 Reuters, “Microsoft Cuts Prices in China to Fight Piracy,” September 22, 2008. 102 Ibid. 103 Times Online Labs, “Do Music Artists Fare Better in a World with Illegal File-sharing?” November 

12, 2009. One economic model predicts that copyright infringement may decrease the earnings of “superstar” 

musicians but increase the total market share of young and niche artists. Pollstar data indicates that the 

combined ticket revenues of the top 20 tours declined by 15 percent from 2006 to 2007, while total North 

American concert ticket revenues increased 8 percent to $3.9 billion in that period. See Alcalá and GonzálezMaestre, “Copying, Superstars, and Artistic Creation,” August 2009, 12. 104 Montgomery and Potts, “Does Weaker Copyright Mean Stronger Creative Industries?” 2008, 255. 105 Walker, “China Blocks Bob Dylan Gigs,” April 4, 2010. 106 BBC News, “‘Vulgar’ Jay-Z Barred from China,” October 11, 2006. 107 One small U.S. entertainment software company regards piracy of its games in China as “free 

marketing” and an opportunity to build demand for its monetized virtual items. Industry official, telephone 

interview by USITC staff, July 15, 2010. 
3-15

based Blizzard Entertainment and operated in China by licensees (including The9 and 

NetEase). The game has gained an estimated 5 million subscribers in China since 

launching in 2005, out of an estimated worldwide subscriber base of 12 million.108 Niko 

Partners estimates that the online gaming industry in China achieved $3.7 billion in 

revenue in 2009 and predicts it will reach $4.5 billion in revenue in 2010.109 

Trademark Counterfeiting in China 

Counterfeiting in China has reached unprecedented high levels. In 2009, China was the 

source of 79 percent of the counterfeit goods seized at the U.S. border, with an additional 

10 percent coming from Hong Kong.110 The United States is not alone in tracing most 

counterfeit goods to China. In 2008, the World Customs Organization, reporting on data 

collected from 121 countries, found that 65 percent of detected counterfeit shipments 

came from mainland China.111 Many U.S. companies doing business in China consider 

counterfeiting to be one of their most serious challenges and report that weak civil and 

criminal IP enforcement exacerbates the problem.112 

The effects on trademark owners include lost sales and revenues, a tarnished brand name 

and reputation, and increased enforcement costs. The overriding concern for trademark 

owners is that their authentic, high-quality products will be priced out of the market in 

China and other countries by poor-quality, cheaper knockoffs. 113 Trademark owners 

frequently find that counterfeit products featuring their trademarks appear on the market 

in China before they have established IP rights or put in place a strategy for addressing 

infringement.114

The counterfeiting problem can be particularly difficult for SMEs. While all firms are 

affected by counterfeits, counterfeit products discovered for sale in China, over the 

Internet, and in international markets, place special burdens on SMEs because they have 

a smaller volume of sales over which to spread significant enforcement costs and often do 

not possess the experience and resources necessary to address counterfeiting in China.115

By way of example, a survey conducted by the Motorcycle Industry Council of 53 firms 

of varying sizes, including SMEs, found that many members do nothing to address IPR 

infringement in China because they lack knowledge about how to resolve the issue 

 108 Haili, Shanshan, and Fang, “Warcraft Row,” March 9, 2010; Blizzard Entertainment, “World of 

Warcraft Subscriber Press Release 12 million worldwide,” October 7, 2010. 109 Niko Partners, “Niko Partners Estimates China’s Online Game Market to Reach $9.2 Billion in 2014,” 

March 31, 2010. 110 Data are for fiscal year 2009. CBP, Intellectual Property Rights Seizure Statistics, October 2009, 12. 111 World Customs Organization, “Customs and IPR Report 2008,” 9. 112 AmCham-China, written submission to the USITC, June 3, 2010, 3; KPMG, Managing the Risk of 

Counterfeiting in the Information Technology Industry, July 2005, 4; industry officials, interviews by USITC 

staff, Shanghai, September 15, 2010; and industry officials, interviews by USITC staff, Hong Kong, 

September 21, 2010. 113 Horan, Johnson, and Sykes, “Foreign Infringement of Intellectual Property Rights,” 2005, 35–36; 

UNODC, The Globalization of Crime, 2010, 173. 114 USITC, hearing transcript, June 15–16, 2010, 189 (testimony of Shaun Donnelly, National 

Association of Manufacturers); Stewart and Stewart, written submission to the USITC, July 8, 2010; 

D’Addario, written submission to the USITC, May 24, 2010, 3; industry officials, interviews by USITC staff, 

Washington, DC, May 20, June 16, June 21, and August 2, 2010. 115 Ibid. 
3-16

successfully, are skeptical about the effectiveness of pursuing an adequate resolution, or 

are concerned about potentially significant costs.116

Industries and Products Subject to Counterfeiting 

The range of industries and products affected by counterfeiting in China is vast, as 

virtually any good or service with a trademark can be counterfeited.117 Goods with wellknown brand names—especially luxury goods and pharmaceuticals, for which profit 

margins are greater—are prime candidates for counterfeiting. However, the high volume 

of trade for many commodity-type goods means that even goods with lower unit values 

and lower margins are profitable to counterfeit.118 Table 3.2 provides examples of the 

wide array of U.S. industries and products that are reportedly targeted by counterfeiters, 

as well as the health and safety issues that are raised by counterfeiting in China. 

TABLE 3.2 Examples of industries and products affected by counterfeiting in China

Industry Description of infringement or issue 

Aviation and aerospace parts Counterfeit components illicitly certified as meeting military or aircraft standards 

reportedly have been installed in avionics.

Apparel Counterfeit apparel may be made with lower quality construction or with 

unapproved/harmful dyes or chemicals.

All-terrain vehicles (ATVs) 

 and motorcycles 

Counterfeit vehicles do not meet federal safety standards or the ANSI/SVIA standard 

for ATVs. Parts, apparel accessories, and support material (handbooks and videos) 

are also counterfeited. 

Automobile parts Counterfeiters have focused on aftermarket parts, producing counterfeit goods with 

substandard parts/construction that are not built to design/safety standards and do 

not feature the quality or life expectancy of standard parts. Some counterfeit parts 

may be for only cosmetic uses, while others are structural or safety components, like 

brake pads. Original equipment manufacturers (OEMs), parts wholesalers, and 

repair shops may be unable to detect counterfeit goods. Counterfeit replacement 

and maintenance parts such as brake shoe/pads, wheel covers, oil and air filters, 

shock absorbers, fan belts, starters, and spark plugs are common. Counterfeits of 

windshields and wheel covers have also been discovered.

Book publishers and test 

 publishers 

Counterfeit books, both fiction and nonfiction, and academic tests are claimed to be 

the product of well-known authors or respected publishers.

Branded leather goods, 

 including purses, 

 luggage, backpacks, 

 cigarette cases, 

 eyeglass holders

Counterfeits of well-known brands have substandard parts/construction. 

Branded spectacles and 

 sunglasses 

Counterfeits of well-known brands have substandard parts/construction. 

Cigarettes Cigarettes made with adulterated tobacco are sold with counterfeit labels. 

Computer printer ink 

 cartridges 

OEM printer cartridges and the printer cartridge cores used by remanufacturers are 

counterfeited.

 116 Motorcycle Industry Council, written submission to the USITC, July 9, 2010, 5. 117 Definitions of key terms, including trademarks and counterfeiting, are contained in Chapter 1. 

Counterfeit goods should be distinguished from “gray market” goods. Gray market goods are genuine; they 

carry a trademark applied with the approval of the trademark holder, but the approval is intended to apply to 

sale only to particular geographic markets. Goods bearing counterfeit marks, on the other hand, are not 

genuine; the marks have been applied without the authority of the trademark holder. CBP, “Trademark and 

Trade Name Protection,” April 2002, 7. Concerns about gray market goods were not raised in Commission 

fieldwork. 118 Stewart and Stewart, written submission to the USITC, July 8, 2010. 
3-17

TABLE 3.2 Examples of industries and products affected by counterfeiting in China—Continued

Industry Description of infringement or issue 

Computers Counterfeits of well-known brands have substandard parts/construction, with lessthan-expected quality, longevity, or safety. 

Consumer electronics, 

 including but not limited to

 televisions, cameras, CD 

 and DVD recorders/ 

 players, MP3 players

Counterfeits of well-known brands have substandard parts/construction, with lessthan-expected quality, longevity, or safety. 

Diamonds Advertising slogans and brands are copied. 

Direct current (DC) power 

 supplies 

Counterfeit power supplies pose safety issues for the household appliance industry 

threatening fire, shock, or electrocution. 

Dry batteries Low-quality counterfeit batteries have exploded, harming equipment and operators. 

Food and beverages Misleading or counterfeit labels have unapproved or harmful ingredients. 

Footwear Counterfeits of well-known brands have substandard parts/construction. 

Ground fault circuit 

 interrupter (GFCI) 

 electrical wall outlets 

Counterfeit GFCI wall outlets are made without the advertised safety features, 

threatening fire, shock, or electrocution. 

Golf clubs and other 

 sporting goods 

Counterfeits of well-known brands have substandard parts/construction that may fail 

in use. 

Health and personal care 

 products (hair dryers, 

 curling irons) 

Counterfeits of well-known brands have substandard parts/construction, with lessthan-expected quality, longevity, or safety. Users face the risk of fire, shock, or 

electrocution. 

Household care products, 

 Including soaps and 

 detergents 

Counterfeit goods that are less effective or harmful when compared to the authentic 

good. 

Information technology (IT) 

 network routers and 

 computers 

Counterfeit networking equipment has been purchased by U.S. government 

agencies, defense contractors, branches of the armed forces, universities, financial 

institutions, and electric utility companies, among others. Counterfeit equipment may 

cause unexpected network failures and could leave secure systems open to attack. 

Jewelry and watches Counterfeits of well-known brands have substandard parts/construction. 

Medical goods Counterfeit in-vitro diagnostic equipment, contact lenses, medical test kits, surgical 

instruments, cardiac catheters, ventilators, thermometers, condoms, gloves, blood 

glucose tests, and combination products pose significant health risks. 

Musical instruments and 

 accessories 

Counterfeits, including guitar strings and straps, are characterized by sophisticated 

packaging of low-quality knockoffs. 

Perfumes and cosmetics Counterfeit cosmetics have been made with adulterated or unapproved ingredients 

that are ineffective or even harmful. 

Pet food Counterfeit pet food with unapproved or adulterated content has led to pet deaths. 

Pharmaceuticals Counterfeit pharmaceuticals may contain ineffective or excessive amounts of active 

pharmaceutical ingredients. They may be contaminated with foreign materials. Some 

may have active ingredients that are no longer effective due to age, but may have 

been re-labeled as being current and potent. 

Retail store and restaurant 

 names 

Stores and restaurants have been established in China with misleading names, such 

as KFG (for KFC), Buckstar (for Starbucks), and T-Eleven (for 7-Eleven). 
3-18

TABLE 3.2 Examples of industries and products affected by counterfeiting in China—Continued

Industry Description of infringement or issue 

Textiles Counterfeit textiles are not made with the same inputs or with the same degree of 

quality as the original. 

Sources: Automotive Body Repair News, “Aftermarket Groups Address the Issue of Counterfeit Chinese Auto 

Parts with Congress,” July 21, 2006; Europa, “Contraband and counterfeit cigarettes,” News Release, July 15, 

2010; Barboza, “Fake Goods and Unsafe Food Threaten Chinese Exports,” May 18, 2007; CBP, “Los Angeles 

CBP Seizes More than $18 Million in Counterfeit Sunglasses,” April 22, 2010; Chao, “Beer Drinkers Warned They 

May Get More than They Ordered at the Bar,” July 1, 2010; Edwards, “HP Gets Tough on Ink Counterfeiters,” 

May 28, 2009; French, “Chinese Market Awash in Fake Potter Books,” August 1, 2007; Gow, et al., “Dangerous 

Fakes: Counterfeit, Defective Computer Components from China,” Bloomberg Newsweek, October 2, 2008; ICE, 

“Los Angeles Shop Owners Plead Guilty,” June 21, 2010; industry official, interview by USITC staff, Washington 

D.C, June 9, 2010; International Imaging Technology Council, written submission to the USITC, July 7, 2010; 

MarkMonitor Case Study, “Under Armour Reduces Gray Market Sales with Mark Monitor,” n.d.; MEMA, written 

submission to the House of Representative Committee on Small Business, July 21, 2010; Motorcycle Industry 

Council, written submission to the USITC, July 9, 2010; Nash, “Counterfeit Parts: A Poor Fit for Your Shop,” 

January 2004; Keller, “Industry and Government Prepare Counter-Attacks,” April 2010; Prince, “Traffickers in 

Counterfeit Cisco Networking Hardware Taken Down,” May 5, 2010; Reuters, “China Seizes 18,000 Fake Viagra 

Pills in Raid,” July 25, 2007; Ricapito, “The Fight Against Faux Fragrances,” January 2010.; Sangani, “The Global 

Trade in Counterfeit Consumer Electronics,” May 10, 2010; Wilber, “Family Members Charged With Selling 

Counterfeit Computer Chips,” October 9, 2009. 

Poor quality counterfeits also undermine substantial investments made by brand owners 

in the quality and reputation of their products. In addition, counterfeits are reported to 

give rise to wrongful product warranty and liability claims that can be expensive to 

defend and can further tarnish the brand.119

Counterfeiting Hotspots 

Much of the counterfeiting that occurs in China reportedly is concentrated in the 

southeastern region, particularly the provinces of Guangdong and Fujian (figure 3.1). 

Foreign direct investment (FDI) inflows to these provinces contributed to the problem. 

As foreign companies built factories in China, transferred advanced production 

technology, and trained employees, manufacturing know-how and processes were 

transferred to counterfeit establishments in these industrial regions.120

As with copyright piracy, industry sources have identified Shenzhen, immediately north 

of Hong Kong, as a center of counterfeit manufacturing.121 Shenzhen was the first area in 

China designated as a special enterprise zone (SEZ).122 The principal advantages for 

businesses operating in SEZs are low tax rates, fewer and simplified administrative and 

customs procedures, and duty-free importation of components and supplies. These 

 119 Industry officials, interviews by USITC staff, Washington, DC, July 9, August 2, 2010. 120 Chow, “Organized Crime, Local Protectionism,” September 19, 2003, 474; Dimitrov, Piracy and the 

State, 2009, 62, 156–58; USITC, hearing transcript, June 15–16, 2010, 37 (testimony of Daniel Chow, Ohio 

State University). 121 Industry officials, interviews by USITC staff, Washington, DC, June 16 and August 2, 2010; Chow, 

“Organized Crime, Local Protectionism,” 2003, 474; UNODC, “The Globalization of Crime,” 178–179; 

Cheung, Intellectual Property Rights in China, 2009, 41; IACC, written submission to the USTR, 

February 18, 2010, 9. 122 Shenzhen was designated as an SEZ in 1980. China.org.cn Web site, “Shenzhen, a Special Economic 

Zone,” http://www.china.org.cn/english/travel/99695.htm (accessed August 25, 2010). 
3-19

FIGURE 3.1 Counterfeit manufacturing concentrations in China 

Source: Cheung, Intellectual Property Rights in China, 2009, 41, 46, 51–52; Chow, “Counterfeiting in China,” April 20, 2004, 5; 

Chow, “Organized Crime, Local Protectionism,” 477; Chow, statement to the Senate Subcommittee on Oversight of Government 

Management, the Federal Workforce, and the District of Columbia, April 20, 2004; IACC, USTR written submission, February 18, 

2010, 9; Industry officials, telephone interview by USITC staff, May 20, 2010 and July 9, 2010; Nintendo, written submission to the 

USTR, February 18, 2010, 21; Philip Morris, written submission to the USTR, February 18, 2010, 13; UNODC, The Globalization of 

Crime, 2010, 180; USDA, FAS, China: IPR Infringement Study, April 26, 2010, 9–12; USTR, 2010 Special 301 Report, 2010, 44–45; 

USITC, hearing transcript and exhibits, June 15, 2010, 34–35 (testimony of Daniel C. K. Chow, Ohio State University). 

Note: The above map represents areas reported to contain large-scale counterfeit manufacturing. Additionally, it includes markers 

by province for particular reported counterfeit industries. Due to the illicit nature of counterfeiting, a comprehensive map of precise 

locations and counterfeit industries could not be developed. However, further details are provided throughout the chapter. 
3-20

attributes not only promote large amounts of FDI and legitimate domestic investment but 

also substantial counterfeit manufacturing.123 For example, industry sources note that 

electronic component counterfeiting is concentrated in the cities of Shenzhen and 

Shantou, alongside legitimate manufacturing.124

Observers state that another reason counterfeit production of footwear and apparel is 

reportedly concentrated in China’s southeast region is that legitimate manufacturing 

activities covering the entire supply chain, including raw materials, components, and 

finished goods, are clustered there.125 Both legitimate and counterfeit footwear factories 

are concentrated in Fujian, and legitimate and counterfeit apparel production is 

concentrated in Guangxi. Counterfeit footwear manufactured in the southeastern 

provinces can reportedly be found in markets in Beijing, Shanghai, and other major cities 

“in abundance.”126 

Production of counterfeit pharmaceuticals does not follow the same regional patterns as 

that of footwear, apparels, and electronics. Manufacturing facilities are prevalent in 

Zhejiang, Hebei, and Jiangsu, in addition to the southeastern provinces.127 As noted by 

industry sources, like other counterfeit manufacturers, producers of counterfeit 

pharmaceuticals are likely located near an industry nexus such as Shanghai.128

Identifying Counterfeiters 

Counterfeiters in China range from sole-proprietor operations producing goods requiring 

little capital investment to factories operated by large private firms and/or SOEs.

Organized crime syndicates also are reportedly involved in counterfeiting because it can 

be as profitable as trading in illegal drugs, prostitution, and gambling. Terrorist groups 

have also engaged in counterfeiting because of its profitability.129

Residents of Hong Kong and Taiwan are said to be important sources of funding for 

counterfeit operations, although substantial funding is available within mainland China as 

well.130 There are deep commercial links between the locations; some Hong Kong or 

Taiwan residents reportedly travel to the mainland, set up counterfeit production 

facilities, and then move back and forth regularly to manage operations. Mainland 

authorities may have difficulty prosecuting a factory owner who lives outside their 

jurisdiction, even though they can raid the factory. Hong Kong authorities also may be 

unable to prosecute because the infringement takes place outside their jurisdiction.131

 123 Industry official, interview by USITC staff, Washington, DC, August 2, 2010; USITC, hearing 

transcript, June 15–16, 2010, 36 (testimony of Daniel Chow, Ohio State University). 124 IACC, written submission to the USTR, February 18, 2010, 11; industry officials, interviews by 

USITC staff, Washington, DC, June 16 and 24, July 2, and August 2, 2010. 125 Industry official, telephone interview by USITC staff, July 6, 2010; Schmidle, “Inside the KnockoffTennis-Shoe Factory,” August 19, 2010. 126 Industry official, telephone interview by USITC staff, July 6, 2010. 127 Industry official, e-mail message to USITC staff, July 16, 2010; industry official, telephone interview 

by USITC staff, July 27, 2010. 128 Industry official, telephone interviews by USITC staff, July 9 and July 27, 2010. 129 Chow, “Organized Crime, Local Protectionism,” September 19, 2003, 474–75; Dimitrov, Piracy and 

the State, 2009, 32, 196–204; USITC, hearing transcript, June 15–16, 2010, 34 (testimony of Daniel Chow, 

Ohio State University); KPMG, “Managing the Risk of Counterfeiting,” July 2005, 3; Center for Public 

Integrity, “Tobacco, Terrorism, and Illicit Trade,” June 29, 2009. 130 Industry official, interview by USITC staff, Washington, DC, August 2, 2010; USITC, hearing 

transcript, June 15–16, 2010, 34 (testimony of Daniel Chow, Ohio State University); UNODC, “The 

Globalization of Crime,” 2010, 180. 131 Industry officials, telephone interviews by USITC staff, May 20 and July 13, 2010. 
3-21

Industry representatives also report that counterfeiters set up “shadow companies” in 

Hong Kong that have no business operations but are instead intended to give a veneer of 

legitimacy to counterfeiting operations on the mainland that are identified as subsidiaries 

of the Hong Kong companies.132 

Counterfeiting Methods 

There are a number of different ways trademarked products reportedly are infringed in 

China. A contract manufacturer may produce more than the original contract called for, 

or may continue to produce after the contract ends, and market the overproduction 

without the knowledge or consent of the IP owner. Counterfeiting can also occur with an 

internal breach at a factory, whereby a current or former employee will take know-how 

gained there to another factory in which counterfeit goods are produced. Counterfeit 

goods may be produced from salvaged or recycled products that are re-marked and sold 

without the authorization of the trademark owner. Counterfeit goods also may be 

produced by individuals or enterprises unrelated to the owner of the branded product 

based solely on a visual examination or the deconstruction and copying of the original.133 

In the case of production continued past contracted amounts or deadlines, the product is 

identical to that of the trademark owner, but is produced without the trademark owner’s 

permission. This type of counterfeiting may be labeled a “ghost” or “third shift” 

operation.134 When produced in this way, the end product is generally indistinguishable 

from the original, although quality control during such third shifts is reportedly lacking. 

Similarly, counterfeiting may occur when current or former employees train others to 

produce the trademarked product. Employees of the brand owner may assist 

counterfeiters in setting up a production line, using the skills and trade secrets learned 

making legitimate goods.135 In the footwear industry, for example, sources commented on 

the production of “super fakes” made in this way; the counterfeit shoes are so similar to 

the original that they can only be distinguished by cutting them open.136 

Some counterfeit goods may be packaged in original trademarked packages; others, in 

packages that are themselves counterfeits. For example, inexpensive substances may be 

used to refill used containers of branded products such as liquid detergents, shampoos, 

and motor oils, with the intent to pass them off as originals; or the counterfeiter may 

package these inexpensive substances in packages suggestive of the legitimate goods, 

such as imitation perfume sold in bottles with a trademark shape. 137 In the case of 

consumables such as pharmaceuticals, counterfeiters may package generic goods as the 

trademarked good or may include adulterated goods, or may obscure the source or falsify 

the expiration/freshness date in order to claim the good is fit for consumption.138 Industry 

 132 Industry officials, interviews by USITC staff, Hong Kong, September 21, 2010. 133 Schmidle, “Inside the Knockoff-Tennis-Shoe Factory,” August 19, 2010. 134 Industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010. 135 Industry official, telephone interview by USITC staff, Washington, DC, July 13, 2010; USITC, 

hearing transcript, June 15–16, 2010, 36 (testimony of Christian Murck, AmCham-China); industry officials, 

interviews by USITC staff, Shanghai, China, September 15, 2010. 136 Industry official, telephone interview by USITC staff, Washington, DC, July 13, 2010. 137 Horan, Johnson, and Sykes, “Foreign Infringement of Intellectual Property Rights,” 2005, 31. 138 World Health Organization (WHO), “General Information on Counterfeit Medicines.” Counterfeit 

pharmaceuticals may be missing the active pharmaceutical ingredient (API) or contain too much or too little 

API, or even the wrong API; may be branded with misleading brand names and logos; and/or may be 

manufactured in dirty, unsafe conditions. The infringing products can also be a genuine product with falsified 

packaging (e.g., relabeled to show an expiry date later than the original one). 
3-22

sources note that well-known pharmaceutical products that have been counterfeited 

include Pfizer’s Viagra and Lipitor and Sanofi-Aventis’ Plavix.139 

An example of counterfeiting by recycling is seen in the counterfeiting of integrated 

circuits (ICs) from electronic waste (e-waste). 140 China collects e-waste from around the 

world to salvage components from it. Some components are legitimately recycled, but 

others enter the counterfeit IC market when ICs are salvaged, remarked as new, and 

“recycled” back into the distribution stream.141 Another source of IC counterfeits is called 

“second source,” where lower-performance ICs are re-marked as higher-grade ICs or 

where nonfunctional ICs are re-marked as new. 142 Old chips can be placed in new 

packaging; this method of counterfeiting is extremely difficult to detect. Industry sources 

report that in some cases production has become more disaggregated, with false labeling 

added at the very end of the process in order to avoid detection and seizure.143 

Counterfeit Distribution 

Counterfeit products in China are often distributed through large open-air and partially 

enclosed markets that can include thousands of stalls or separate units operated by 

wholesale dealers. Counterfeit goods may be on open display or available only in back 

rooms or under the counter, with legitimate products displayed to the public.144 Major 

wholesale markets that serve the coastal region and China’s major urban centers include 

Hanzhen Jie in Wuhan City, Hubei province; Linyi market in Linyi City, Shandong 

province; Nansantiao market in Shijiazhuang in Hebei province; China Small 

Commodities City in Yiwu City, Zhejiang province; and Wuai market in Shenyang City, 

Liaoning province.145 

The town of Yiwu in coastal Zhejiang province reportedly serves as a major wholesale 

distribution center for counterfeit goods to markets throughout China.146 Yiwu has an 

estimated 30,000 stalls for wholesale distributors to exhibit merchandise. Industry 

 139 Pfizer, “Case Study: Billion Dollar Business,” December 3, 2007; Bodanich, “Counterfeit Drugs’ Path 

Eased by Free Trade Zones,” December 17, 2007; Theriault, Statement to the Health and Human Services 

Drug Importation Task Force, April 5, 2004. 140 Counterfeiters do not generally produce ICs in the first instance because the fabrication of wafers from 

which ICs are made is a very expensive, capital-intensive process, requiring production in clean rooms, 

testing, and marking of model number, date of production, and lot number. Industry official, interview by 

USITC staff, June 16, 2010. 141 Industry official, interview by USITC staff, June 16, 2010; Hughitt, “Counterfeit Electronic Parts,” 

June 22–24, 2010, 5. 142 Counterfeit ICs sold into military supply chains are particularly profitable because militaryspecification (“mil-spec”) components require more stringent testing and quality controls, which raises costs 

to the producer, and, therefore, are much more expensive than non-mil-spec components. For instance, a 

consumer-grade IC that sells for $1 can be sold for $50 if it bears a military grade marking. Because only the 

semiconductor companies are able to recognize their own proprietary coding systems, end users are largely 

unable to distinguish between counterfeit and genuine ICs. Industry official, interview by USITC staff, 

June 16, 2010. See generally USDOC, Defense Industrial Base Assessment, January 2010 (providing 

statistics and information on counterfeits in U.S. defense and industrial supply chains). 143 Industry official, interview by USITC staff, August 2, 2010. 144 Chow, “Organized Crime, Local Protectionism,” September 19, 2003, 476–77; Dimitrov, Piracy and 

the State, 2009, 4, 35–40; USITC, hearing transcript, June 15–16, 2010 (testimony of Daniel Chow, Ohio 

State University). 145 Chow, “Organized Crime, Local Protectionism,” September 19, 2003, 477; USITC, hearing transcript, 

June 15–16, 2010, (testimony of Daniel Chow, Ohio State University). 146 Chow, “Organized Crime, Local Protectionism,” September 19, 2003, 478; USITC, hearing transcript, 

June 15–16, 2010 (testimony of Daniel Chow, Ohio State University); China Sourcing Information Center, 

“Discovering Yiwu City,” May 23, 2010. 
3-23

sources state that retailers come to the market and carry goods back to the retail market in 

cars, vans, trucks, and bicycles.147 Thousands of trucks reportedly move in and out of the 

town throughout the day and night, carrying goods to counterfeit markets around the 

country and to border cities such as Wulumuqi in Xinjiang province, an export post for 

the Middle East, Africa, and Eastern Europe. 148 Besides Wulumuqi, other noted 

international distribution points include Lowu market in Shenzhen, Guangdong province, 

where goods are often exported via bordering Hong Kong; the Fujian province coastline, 

where goods are frequently transshipped through neighboring Taiwan; and the Guangxi 

province border, where goods transit to Southeast Asia.149 Although some general exit 

points are known, Chinese counterfeit goods are increasingly taking circuitous routes to 

their final destinations, including the United States, making it more difficult to identify 

their point of origin. 150 For example, in 2007, a case was documented in which 

counterfeit pharmaceuticals originating in China traveled to Canada and to the United 

States (through a Canadian Internet pharmacy) via Hong Kong, the United Arab Emirates 

(UAE), London, and the Bahamas, with the travel through the UAE linked to a free-trade 

zone (FTZ) in Dubai.151 

The use of the Internet as a channel for the marketing and distribution of counterfeit 

goods is also growing rapidly, with goods entering the U.S. market via e-commerce and 

auction sites and in bulk shipments.152 Not only does the Internet facilitate the shipment 

of smaller quantities of counterfeit goods directly to customers and middlemen around 

the world, it also allows dealers to lower the risk of detection by reducing the need for 

warehousing. The Internet thus facilitates “just in time” delivery of legitimate and 

counterfeit products.153 The problem of counterfeit distribution via the Internet is likely to 

increase with the increasing online sophistication of producers and consumers. One 

industry source described instructional DVDs being sold by enterprising Chinese 

counterfeiters that explain how to set up an e-commerce Web site and how to participate 

as a seller on auction sites. These individuals then take the orders generated by the 

e-commerce or auction site and present them to the counterfeiter, who furnishes the 

goods to fill the order.154 

The Internet also is a source of counterfeit medicines. The World Health Organization 

estimated that half of the pharmaceutical goods purchased from online sites that conceal 

their physical addresses are fakes.155 Many counterfeit medicines are sourced from China 

because of the ready accessibility of the bulk APIs used to produce counterfeit drugs.156

 147 Industry official, telephone interview by USITC staff, July 9, 2010. Over the past five years, 

counterfeit trade at Yiwu has reportedly become less obvious, but continues in underground channels. 148 Chow, “Organized Crime, Local Protectionism,” September 19, 2003, 488; USITC, hearing transcript, 

June 15–16, 2010 (testimony of Daniel Chow, Ohio State University). 149 Cheung, Intellectual Property Rights in China, 2009, 41; industry official, interview by USITC staff, 

May 20, June 24, July 13, and August 2, 2010; UNODC, The Globalization of Crime, 2010, 179; USTR, 

2010 Special 301 Report, 2010, 44–45. 150 Industry officials, telephone interviews by USITC staff, June 24, 2010 and July 8, 2010. 151 Bodanich, “Counterfeit Drugs’ Path Eased by Free Trade Zones,” December 17, 2007. 152 Stewart and Stewart, written submission to the USITC, July 8, 2010, 24; American Apparel & 

Footwear Association, written submission to the USITC, July 9, 2010, 2; industry official, telephone 

interview by USITC staff, July 9, 2010. 153 Industry officials, telephone interviews by USITC staff, Washington, DC, May 20 and July 13, 2010. 154 Industry official, interview by USITC staff, July 13, 2010. 155 UNICJRI, “Counterfeiting: Press Kit,” n.d.; Stewart and Stewart, written submission to the USITC, 

July 8, 2010, 12. 156 Pfizer, “Counterfeit Pharmaceuticals: A Serious Threat to Patient Safety,” 2007, 4; Stewart and 

Stewart, written submission to the USITC, July 8, 2010, 12. 
3-24

Enforcement 

For firms to enforce their trademarks effectively, trademarks generally must be registered 

with the trademark office in the country where protection is sought. Once registered, 

firms can seek enforcement through border seizures by customs officials, administrative 

agency proceedings (including raids of factories or distribution locations), and criminal or 

civil judicial actions. 

Customs Proceedings in China and the United States 

Trademark owners register their marks in the United States with the U.S. Patent and 

Trademark Office and in China with the Trademark Office of the State Administration of 

Industry and Commerce (SAIC). They may then record their trademarks with the national 

customs offices—CBP in the United States and General Administration of Customs 

(GAC) in China. CBP can inspect and seize counterfeit and pirated goods that are being 

imported into the United States. GAC is empowered to seize both infringing imports and 

exports, but its efforts focus on exports. 

Both CBP and GAC strongly encourage brand owners to record their marks in their 

databases to facilitate the detection and seizure of counterfeits.157 However, trademark 

owners often do not record their trademarks either with CBP or GAC. Currently, 

approximately 26,000 trademarks are recorded with CBP, compared to approximately 

1.6 million active registered trademarks in the United States.158 GAC reports that by the 

end of 2008, only 12,227 trademarks were recorded there, compared to 3.4 million 

registered trademarks in China. 159 Commission fieldwork did not provide clear 

information about why more U.S. brand owners do not record with U.S. or Chinese 

customs authorities; however, one reason mentioned was the relative expense, given the 

limited number of counterfeit goods actually seized.160 

Detection of counterfeit goods as they cross international borders is difficult, in large part 

because of the sheer volume of global trade. For example, in 2009, CBP processed over 

11 million 40-foot containers, accounting for over half of U.S. trade by value. CBP also 

processed 361 million passengers and pedestrians, 109 million conveyances, and over 87 

million aircraft passengers,161 all of which are known methods of transporting counterfeit 

goods. A growing problem for trademark owners is counterfeiters’ increasing tendency to 

ship their goods in small shipments via separate express companies; such shipments are 

much more difficult for customs authorities to track and evaluate for trademark 

infringement than the large shipments that were formerly common.162 

 157 CBP, “Protect your IPR by Recording your Trademarks and Copyrights,” April 28, 2008; Qunying, 

“Securing China’s Borders,” July/August 2010. 158 Government official, email message to USITC staff, September 20, 2010; CBP, Intellectual Property 

Rights Search database, September 28, 2010. 159 Qunying, “Securing China’s Borders,” July/August 2010; Lu, “ Nation’s Trademark Numbers 

Skyrocket,” May 5, 2010. The number of active trademarks in China is not generally reported. 160 Industry official, interview with USITC staff, Washington, DC, June 1, 2010. 161 CBP, Performance and Accountability Report, FY 2009, March 9, 2010. 162 Brener, “Remarks at U.S. Patent and Trademark Office Global Intellectual Property Academy,” 

July 14, 2010. 
3-25

Administrative Proceedings in China 

Trademark owners attempting to protect their rights through administrative proceedings 

in China gather intelligence on counterfeiters and present the results to administrative 

authorities and police to support raids of counterfeit factories or distribution locations.163

However, industry representatives report that administrative penalties in China to date are 

too lenient to be a significant deterrent; fines are low, and facilities closed by raids soon 

reopen elsewhere or under a different name. 164 Counterfeiters reportedly see 

administrative fines and the loss of merchandise as only a cost of doing business.165 

Industry representatives report that counterfeiters often are skilled at evading authorities. 

For example, in an effort to render the raids ineffective, many counterfeiters reportedly 

have spread production among several locations. They also delay affixing the brand or 

label until the very end of the production process, producing generics by day and 

counterfeits by night. Thus, raids that occur during the day may come up emptyhanded.166 

Judicial Actions in China and the United States 

While criminal enforcement is considered to be the most effective way to address 

counterfeits, it rarely occurs in China—generally only where there are dangers to public 

health or safety.167 In civil litigation, foreign trademark owners reportedly have obtained 

some favorable judgments in recent years. 168 Industry sources remain concerned, 

however, that in locations that are dependent on counterfeit manufacturing for jobs and 

revenue for the local economy, counterfeiting will not be effectively addressed; largescale counterfeiting is particularly unlikely to be stopped if it risks causing significant 

unemployment or civil unrest.169

 163 Trademark holders do not generally report that administrative agencies are unwilling to conduct raids 

as sometimes reportedly occurs in the copyright context. 164 USITC, hearing transcript, June 15–16, 2010, 39 (testimony of Daniel Chow, Ohio State University); 

IIPA, written submission to the USITC, July 9, 2010, 23; U.S. Council for International Business, written 

submission to the USITC, July 20, 2010, 3; industry official, interview by USITC staff, Washington, DC, 

July 1, 2010; industry officials, telephone interviews by USITC staff, July 9 and 13, and August 3, 2010; 

industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010; and industry officials, 

interviews by USITC staff, Hong Kong, China, September 21, 2010. 165 Industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010; USITC, hearing 

testimony, June 15–16, 2010, 40 (testimony of Daniel Chow, Ohio State University); USTR, Special 301 

Report, 2010, 21. 166 Industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010; industry officials, 

interviews by USITC staff, Hong Kong, China, September 21, 2010; industry official, interview by USITC 

staff, Washington, DC, August 2, 2010. 167 Industry official, telephone interview by USITC staff, July 27, 2010; industry officials, interviews by 

USITC staff, Hong Kong, China, September 21, 2010. 168 See, for example, Starbucks Corporation and Shanghai Tongyi Xingbake Coffee Co. Ltd. vs. Shanghai 

Xingbake Café Co. Ltd. Vs. Nan Jin Road Branch of Shanghai Xingbake Café Co. Ltd., December 20, 2006, 

Shanghai High Court; Exxon Mobil vs. American Mobil International Petroleum Group, July 24, 2009, 

Shanghai Intermediate People’s Court; Michelin Group vs. Tan Guoqiang and Ou Can, April 24, 2009, 

Changsha Intermediate People’s Court. 169 Industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010; industry officials, 

interviews by USITC staff, Hong Kong, China, September 21, 2010; industry officials, interview by USITC 

staff, Washington, DC, August 2, 2010; Dimitrov, Piracy and the State, 2009, 4, 35; USITC, hearing 

transcript, June 15–16, 2010 (testimony of Daniel Chow, Ohio State University); USITC, hearing transcript, 

June 15–16, 2010 (testimony of Jeremie Waterman, U.S. Chamber of Commerce). 
3-26

There have been a number of criminal convictions in the United States for trafficking in 

counterfeit goods from China. In 2010, the Federal Bureau of Investigation (FBI), in 

cooperation with China’s Ministry of Public Security, announced more than $143 million 

in seizures, as well as 30 convictions of traffickers, in “Operation Network Raider” which 

involved counterfeit Cisco network hardware. These counterfeit devices and labels 

originated in Shenzhen, China. 170 Other recent U.S. criminal convictions based on 

counterfeit imports from China have involved footwear and apparel, consumer goods, 

DVDs, jewelry, pharmaceutical drugs, and semiconductors and other high-tech parts.171 

 170 USDOJ, “Department of Justice and Homeland Security Announce 30 Convictions,” May 6, 2010. 171 USDOJ, “Distributor of Counterfeit Pharmaceutical Drugs Sentenced,” January 15, 2009; USDOJ, 

“Distributor of Counterfeit Pharmaceutical Drugs Convicted,” March 23, 2009; USDOJ, “Pharmacist 

Sentenced to Prison for Ordering and Receiving Counterfeit Pharmaceutical Drugs,” September 25, 2006; 

USDOJ, “Southern California Man Pleads Guilty to Trafficking in Counterfeit Viagra,” January 6, 2005; 

USDOJ, “Former Folsom Resident Sentenced for Selling Fake Designer Handbags,” September 15, 2009; 

USDOJ, “Houston Importer Convicted of Trafficking in Counterfeit Merchandise,” July 20, 2004; USDOJ, 

“Two Individuals Plead Guilty to Trafficking in More than Half a Million Tubes of Counterfeit Toothpaste,” 

August 28, 2008; USDOJ, “Importer Convicted of Bribery and Trafficking in Counterfeit Exercise 

Equipment Made in China,” July 15, 2010; USDOJ, “New York Corporation and Its President Sentenced for 

Importing Counterfeit Trademarked Clothing,” June 11, 2008; USDOJ, “California MVP Micro, Inc. Owner 

Pleads Guilty in Connection with Sales of Counterfeit High Tech Parts to the U.S. Military,” January 13, 

2010; USDOJ, “Defendant Pleads Guilty in DVD Piracy Conspiracy in First Joint Investigation by U.S. and 

China,” October 25, 2007; USDOJ, “Warren Pair Admit Trafficking in Counterfeit DVDs,” March 24, 2004; 

USDOJ, “Beltsville Woman Pleads Guilty to Selling Counterfeit DVDs,” June 11, 2009. 
4-1 

CHAPTER 4 

Patent Infringement and Trade Secret 

Misappropriation in China 

Firms that create new technologies generally protect their technological innovations in 

two forms: patents and trade secrets.1

 Patent and trade secret protection are of critical 

importance to firms with significant research and development (R&D) expenditures: 

many view such protection as crucial for their continued survival.2

 Patents, for example, 

allow companies to commercialize the inventions that are the end product of their R&D 

expenses either directly, as is the case for pharmaceutical companies that market patented 

drugs, or indirectly through IP licensing, as is the case for many high-tech 

telecommunications companies.3

Patents and trade secrets can complement one another in the context of a firm’s overall IP 

strategy. If a firm is in a position to maintain the confidentiality of its innovations, trade 

secret protection helps keep that innovation from being taken by others—for example, by 

theft or corporate espionage. However, some types of innovation cannot be kept 

confidential: any product sold can be examined by competitors and, potentially, copied. 

In order to prevent such copying, patent protection provides inventors with the exclusive 

right to make, use, and sell their inventions for a fixed period of time. In exchange for 

this limited monopoly, a patentee must disclose in the patent application how to practice 

the invention. In so doing, the patentee gives up trade secret protection in exchange for 

patent protection and patent applications are generally published 18 months after filing. 

An innovator, therefore, may be faced with a choice: to try to keep an innovation secret 

for an unlimited period in the hope that no one successfully copies it, or to seek patent 

protection, which provides more definite rights but for a limited time.4

The fact that a patent in one country requires public disclosure to the world complicates a 

firm’s decision whether to rely on patent or trade secret protection for its innovations. For 

example, a firm concerned about ineffective patent enforcement in China may prefer to 

rely on trade secret protection over patent protection. However, that preference for trade 

secret protection may require that the firm not seek patent protection anywhere in the 

world, so as to preserve the secrecy of its invention. Conversely, a firm that is generally 

comfortable with trade secret protection globally, but that enters the Chinese market with 

a Chinese joint venture partner, may be concerned about entrusting its secrets to that 

partner, and may therefore prefer the security of patent protection. Obtaining patent 

protection in China, however, would generally preclude reliance on trade secret 

protection elsewhere. 

 1

 Some industries, particularly the computer software industry, benefit from technology-related copyright 

protection as well. 2

 Tessera, Inc., written submission to the USITC, July 9, 2010; industry officials, interviews with USITC 

staff, Washington, DC, June 22 and July 30, 2010; PhRMA, written submission to the USTR, 2010, 3. 3

 Industry officials, interviews with USITC staff, June 22, July 29 and 30, 2010. 4

 By way of example, even if a product is sold in the marketplace, its method of production may not be 

easily determined; a firm might therefore choose to rely on trade secrets to protect aspects of its production 

method. Thus, Coca Cola has relied on trade secrets rather than patent protection to keep from disclosing the 

recipe for its products. 
4-2 

Because of the often interrelated nature of patent and trade secret protection, this chapter 

discusses both. It begins with a description of the patent landscape in China, including 

recent noteworthy changes in the patent law and an overview of the patenting patterns of 

domestic and foreign inventors in China. It follows with descriptive information about 

the industries affected by patent infringement and patent enforcement challenges in 

China.5

 The chapter then turns to trade secret misappropriation, describing the industries 

affected, enforcement challenges, and prominent trade secret misappropriation cases. 

Patent Infringement in China 

China’s patent law recently has been amended in ways considered both favorable and 

unfavorable, according to U.S. industry. One unfavorable change has been an expansion 

of the conditions under which the Chinese government can require a firm to license its 

technology to others. More favorably, the law has been amended to include an absolute 

novelty standard, which may enable a foreign firm to invalidate a Chinese patent obtained 

for an invention that is in the public domain or used outside of China. The Chinese 

government’s focus on indigenous innovation has resulted in a boom in patenting by 

Chinese inventors. Although filings of all types of patents are on the rise, Chinese 

inventors particularly focus on utility model patents, a type of “petty patent” discussed in 

chapter 1. These patents are quick, inexpensive, and easy to obtain, as they are not 

substantively examined by patent examiners. Chinese inventors appear to be wielding 

petty patents against foreign firms with some success, although there are only a small 

number of published cases. 

Recent Changes to China’s Patent Law 

China issued its initial Patent Law in 1984 and has amended it three times, with the most 

recent amendment becoming effective in October 2009. Industry representatives and 

observers report several important changes resulting from the recent amendment. First is 

the expansion of the conditions under which compulsory licensing may occur. A 

compulsory license exists when a government allows someone else to produce the 

patented product or process without the consent of the patent owner. 6 U.S. firms 

anticipate that any compulsory license issued by the government in China would not be 

on terms that would reasonably compensate the patent owner and would involve only a 

token payment.7

 

The third amendment raises concerns because it broadens the opportunities for such 

licensing to include cases in which the owner has not “sufficiently exploited” the 

invention and cases in which the owner exploits the patent in a way that triggers antitrust 

concerns.8

 The third amendment is thus intertwined with the AML; however, as will be 

 5

 Definitions of patents and patent infringement are provided in chapter 1. 6

 WTO, “Compulsory Licensing of Pharmaceuticals and TRIPS,” September 2006. 

7

 Industry officials, interviews by USITC staff, Washington, DC, May 12, July 15 and 17, 2010. While 

compulsory licensing is often thought to be aimed at patented drugs, it is not limited to them. For example, 

the amended law specifically permits the government to grant a compulsory license on a patent involving 

semiconductor technology if the license for exploitation is limited to use in the “public interest.” U.S. firms 

also have expressed substantial concern about the threat of compulsory licenses in connection with industries 

China considers strategic, as well as in standards-setting (see chapter 5). 8

 Jones Day, “What Does the Third Amendment to China’s Patent Law Mean to You?” January 2009. 
4-3 

 

discussed in chapter 5, patent misuse under the AML remains undefined. Although 

critical terms have not been defined and no compulsory licenses have issued, some U.S. 

firms believe that the threat of a compulsory license may have a substantial chilling effect 

on their ability to set a value on their IP in China comparable to the value set elsewhere in 

the world.9

 These firms fear that if the Chinese government believes that certain pricing 

terms are onerous, it will step in and require compulsory licensing at minimal prices.10 

A more positive change in the amended patent law is the adoption of an “absolute 

novelty” standard. Previously, the law used a standard that did not take into account 

public use or knowledge outside of China in determining whether an invention was novel. 

The amended law now defines “prior art” as “publicly known art anywhere in the world 

before the filing date.”11 This change may address the practice of “patent hijacking,” 

which reportedly occurred, for example, when a Chinese industry representative at an 

overseas trade show saw an invention that was unknown in China and subsequently 

patented that invention in China. The new standard reportedly applies to all three types of 

patents, although it is not clear yet whether it will apply retroactively.12 

A Patent Boom in China 

The Chinese government’s focus on the promotion of indigenous innovation has spurred 

a patent boom in China.13 The State Intellectual Property Office (SIPO) received 976,686 

applications in 2009, with invention patent applications growing by 18 percent, utility 

model patents by 38 percent, and design patents by 14 percent compared to 2008.14 Most 

SIPO applications were filed by domestic inventors: in 2009, Chinese applicants filed 

73 percent of invention patent applications, 99 percent of utility model patent 

applications, and 97 percent of design patent applications.15 

U.S. and other foreign companies focused their patent filings in China on invention 

patents, filing few design patents and almost completely ignoring utility model patents.16

By contrast, Chinese inventors file more utility model and design patents than invention 

patents, although filings were more balanced across all three types of patent than they 

were for foreign inventors (figures 4.1 and 4.2). 

9

 AmCham-China, “2010 White Paper,” 2010, 112; Waterman, Written testimony to the USITC, June 15, 

2010, 23. 10 Industry officials, interviews by USITC staff, Washington, DC, May 12, and July 15 and 17, 2010. 

11 Bai et al., “The Radical Third Amendment,” 2009, 21. 12 Ibid.; McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 24; industry officials, 

interviews by USITC staff, Hong Kong, September 21, 2010. 13 McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 26. See chapter 5 for a discussion 

of China’s policy focus on indigenous innovation. 14 By contrast, the number of annual patent filings in the United States has remained virtually unchanged 

in the last three years. USPTO, “U.S. Patent Statistics Chart,” April 20, 2010. 15 SIPO, 2009 Annual Report, 2010, 35. 16 As discussed in chapter 1, U.S. firms may overlook utility model filings because they are not familiar 

with them. Weisun, “Intellectual Property Laws in China,” 2010, 2; industry official, interview by USITC 

staff, Washington, DC, July 14, 2010. Undue reliance on invention patents may in part result from foreign 

firms’ use of the Patent Cooperation Treaty to file invention applications throughout the world (including in 

China), not knowing that they may be well served to file a China-specific utility model patent application as 

well. 
0

20

4-4 

,000

40

60

80

100

120,000

2005 2006 2007 2008 2009

,000

,000

,000

,000

Invention Utility model Design

FIG RE 4.1 Foreign inventors focus on invention patents in China, 2005–09 

Sour : SIPO.

U

ce

0

100,000

200, 00

300, 00

400, 00

500, 00

600, 00

700, 00

800, 00

900, 00

1,000, 00

2005 2006 2007 2008 2009

0

0

0

0

0

0

0

0

0

Invention Utility model Design

FIGU E 4.2 Chinese inventors seek all three types of patents in China, 2005–09

Sou e: SIPO.

R

rc
4-5 

 

Chinese companies reportedly apply for utility model and design patents in great numbers 

because they are easier and quicker to obtain than invention patents.17 Some utility model 

patents obtained by Chinese firms are alleged to be opportunistic and predatory. Chinese 

firms have been accused of obtaining quickly issued and nonsubstantively examined 

utility model patents based on the inventions of others (including foreigners) and then 

accusing the true inventors of infringement. U.S. industry representatives further report 

that it can be difficult to monitor and protect against such predatory patenting in China.18 

Some industry representatives have asserted that SIPO makes it more difficult for 

foreigners to obtain patents or to invalidate Chinese patents than it does Chinese firms.19

However, other U.S. industry representatives do not believe they have encountered 

antiforeign bias.20 Even if patent procurement is largely unbiased overall, some industry 

representatives have reported that in sectors considered by the Chinese government to be 

of strategic importance, such as pharmaceuticals, renewable energy, and biotechnology, 

patents are more difficult to obtain and/or more limited in scope than those granted in 

developed countries. Some industry representatives contend that the purpose of this 

differential treatment is to benefit domestic firms in critical sectors at the expense of 

foreign patent holders.21

Although the dramatic increases in patent filings by Chinese companies may reflect 

movement up the value chain and the desire to protect domestic innovation, filings may 

also be motivated by a desire to qualify for a reduced tax rate or to obtain subsidies or 

other government recognition.22 As will be discussed in chapter 5, China affords certain 

tax-related benefits to patent holders, and one requirement for tax relief is the ownership 

of a specified number of Chinese patents. Moreover, a number of provincial governments 

offer payments to Chinese companies that are intended to support the preparation and 

filing of patents in China and overseas.23

Industries Affected by Patent Infringement 

U.S. sectors in which high numbers of firms rely on patents to protect their inventions in 

China include some familiar examples, such as pharmaceuticals, telecommunications, 

electronics, chemicals, and biotechnology, but also include some less expected ones, such 

as motorcycles, footwear, food and beverages, and construction fixtures.24 

17 Industry officials, interviews by USITC staff, Washington, DC, May 12 and July 15, 2010; industry 

officials, telephone interviews by USITC staff, July 22, 2010. 18 Industry officials, interviews by USITC staff, Washington, DC, June 2 and July 7, 2010; industry 

officials, telephone interviews by USITC staff, July 9 and 22, 2010; industry officials, interviews by USITC 

staff, Shanghai, China, September 15, 2010; Bach, “Strategies for IP Protection in China,” 2009, 8. 19 Industry officials, telephone interviews by USITC staff, July 9 and 27, 2010. 20 Industry officials, telephone interviews by USITC staff, July 29, 2010. 21 Industry officials, interviews with USITC staff, June 22, July 9, 27 and 29, 2010. 22 McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 26. 23 Zhou and Stembridge, “Patented in China,” 2008, 17. 

24 Industry officials, telephone interviews with USITC staff, July 9, 14, 22, 27, and 29, 2010; industry 

officials, interviews with USITC staff, Washington, DC, June 22, July 13, 14, and 30, 2010; Motorcycle 

Industry Council, written submission to the USITC, June 3, 2010. The above industries were identified based 

on industry reports rather than published data. Published case information is only sporadically available in 

China. 
4-6 

 

Commission fieldwork indicates that there are relatively few patent-related administrative 

or civil actions in China involving U.S. patent holders, as compared to larger numbers of 

actions involving copyrights and trademarks. There may be several reasons for this. As 

indicated in chapter 1, administrative relief for patent infringement is more limited than 

for copyright or trademark infringement. Also, unlike actions alleging copyright and 

trademark infringements—which are often ascertainable merely by looking at the 

product—patent infringement may be particularly technical and fact-intensive. The lack 

of effective discovery in litigation in China exacerbates the difficulty of bringing suit for 

patent infringement, which can be factually complex. Furthermore, damages awarded are 

generally low, causing many industry representatives to believe that bringing suit is not 

worthwhile.25

In light of such shortcomings, industry representatives identified certain ways that they 

try to protect their technologies in China. Some rely to a greater degree on trade secrets. 

Others, who benefit from being in industries where the capital costs of production are 

substantial, and where product lifetimes are short, strive to stay one step ahead of 

infringing competitors.26 Some U.S. industry representatives also explained that they do 

what they can to avoid developing or producing their most critical innovations in China, 

whenever possible placing these “crown jewels” in locations with more effective 

enforcement mechanism.27

In the absence of a substantial number of reported patent cases involving U.S. patent 

holders in China, suits brought in other countries involving Chinese firms or products 

may shed light on some industries affected by patent infringement in China. For example, 

section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, provides a venue for patent and 

other IPR infringement claims where the accused products are imported into the United 

States.28 Of the 103 cases instituted during 2007–09, 47 percent involved respondents 

located in China and/or Hong Kong or accused imports from these locations.29 Section 

337 investigations arise across a large number of industry sectors, but in recent years the 

majority involving China have focused on electronics and electrical products.30 

In the pharmaceutical sector, Commission fieldwork revealed industry-specific concerns 

with issues related to, but independent of, patent infringement: patent linkage and indirect 

reliance. These issues are discussed below (box 4.1). 

25 Industry officials, telephone interviews by USITC staff, July 9, 27, and 29, 2010; industry official, 

interview by USITC staff, Washington, DC, June 22, 2010. 26 Industry official, interviews by USITC staff, Washington, DC, July 2 and 7, 2010. 27 Industry officials, interviews by USITC staff, Washington, DC, May 12, July 7, 15, and 26, 2010; 

industry officials, interviews by USITC staff, Beijing, China, September 8, 2010; industry officials, 

interviews by USITC staff, Shanghai, China, September 15, 2010. 28 Section 337 is administered by the Commission. Although the Commission’s adjudicatory jurisdiction 

extends to many forms of IPR violations, most complaints filed under Section 337 involve allegations of 

patent infringement. USITC, “Section 337: Answers to FAQ,” 2009, 1. 29 USITC, 337 Investigational History Database. 30 These products included semiconductors; personal entertainment media (e.g., TV, radio, and CD/DVD 

players), digital cameras, mobile phones, and PCs and peripheral equipment. It should be noted, however, 

that the sample size of Commission investigations is itself small, and because of certain benefits and 

drawbacks of using the Commission as a forum for patent infringement disputes, the Commission’s caseload 

may not be representative of the universe of patent infringement disputes involving Chinese defendants or 

products. Moreover, the cases brought in the United States involving infringement by imports from China 

may not be representative of the types of infringement actually occurring in China. 
BOX 4.1 Pharmaceutical Sector IPR Issues 

Pharmaceutical industry representatives assert that, unlike the United States, China has no effective patent linkage 

system (or related notification system) that would delay marketing approval of generic drugs until after expiration of 

related patents. The lack of such a system, coupled with a lack of robust patent enforcement, means that infringing 

generic pharmaceuticals can still be approved for sale in China by the State Food and Drug Administration (SFDA) 

and/or can stay on the Chinese market despite an existing patent. Industry representatives assert that the sale of 

such infringing generic products reduces their sales and profits. 

“Indirect reliance” is a term of art used by the pharmaceutical industry to refer to the practice of Chinese generic 

pharmaceutical companies that rely upon or reference data submitted by an original innovative company in seeking 

manufacturing or marketing approval for their generics from the SFDA. For instance, industry representatives assert 

that Chinese generic pharmaceutical manufacturers are referencing data submitted by U.S. pharmaceutical 

companies to obtain approval for their products from the U.S. Food and Drug Administration (FDA). Although such 

data are not publicly disclosed by the original innovative company, competitors often take the publicly-available FDA 

summaries and use the data therein to support their own copied products in their SFDA submissions. The SFDA 

reportedly accepts the summarized data, effectively relying on a U.S. or European regulator’s review of the 

background test data supporting a new product. Pharmaceutical industry representatives consider this indirect 

reliance on their valuable test data to be unlawful free-riding on the innovative company’s research, development, 

and clinical testing expenses. 

Source: Industry officials, interviews by USITC staff, Washington, DC, June 22 and July 19, 2010.

Patent Enforcement Challenges in China 

Industry representatives did not identify types of infringers or locations that were 

generally associated with patent infringement in China, unlike the recurring patterns and 

“hot spots” associated with copyright and trademark infringement. The representatives 

did, however, identify issues that are considered when determining where and against 

whom to bring a claim for patent infringement. These issues track the difficulties noted 

more generally for civil enforcement (chapter 1) and include the possibility of favoritism 

towards Chinese defendants, particularly state-owned enterprises (SOEs); the risk of 

noncompliance with judicial orders; the lack of discovery in court proceedings; and the 

difficulties of authenticating or admitting certain types of evidence. 

Patent infringement cases will often be more complex than cases involving other types of 

IPR. As a result, judicial inexperience, the lack of discovery, and evidentiary difficulties 

present especially acute problems in complex patent suits compared to other IPR 

lawsuits. The lack of discovery, for example, means that patents covering production 

methods—although issued in China—are virtually impossible to enforce because 

defendants need not disclose how their allegedly infringing products are made.31 The 

complexity of patent suits also exacerbates the impact on foreign firms of Chinese 

requirements that all evidence obtained abroad be notarized in the home country and then 

forwarded to the Chinese embassy in the home country for legalization. 32 Industry 

representatives have asserted that these technical requirements, which apply only to 

evidence gathered outside of China, impose significant cost and delay on foreign patent 

litigants and make the presentation of certain evidence extremely difficult.33 Because 

4-7 

 31 Von Lewinski, Copyright Throughout the World, 2009, sec. 8.46(b); industry official, telephone 

interview with USITC staff, July 29, 2010. 32 Cutshaw, Burke, and Wagner, Corporate Counsel’s Guide to Doing Business in China, 2009, sec. 24.9 

(2009). 33 Industry officials, telephone interviews with USITC staff, July 22, 27, and 29, 2010. 
4-8 

 

 

patent cases often involve high-tech industries, such as telecommunications and 

pharmaceuticals, concerns about Chinese national favoritism (see chapter 5) in sectors the 

Chinese government deems important may also be present in patent cases.34

As for the best venue for a patent infringement case, several industry representatives 

noted that suing a defendant in the jurisdiction in which it is located can be problematic 

because of the likelihood that local protectionism will play a role. Some industry 

representatives reported that their cases were subject to antiforeign newspaper and 

television coverage. Publicity often works against foreign IPR litigants; industry 

representatives expressed a preference for quietly trying their cases outside the glare of 

media coverage.35 On the other hand, judicial orders from distant courts are reported to 

be difficult to enforce.36

Industry representatives assert that another important problem in patent litigation is the 

previously mentioned ability of Chinese companies to file for utility model patents 

covering IP that is in the public domain elsewhere or for which the original inventor has 

not yet filed for protection in China. Chinese companies armed with such utility model 

patents then bring suit against foreign companies that manufacture or export goods to 

China, or use the utility model patents to defend themselves from allegations of 

infringement.37

High-Profile Patent Cases 

There are a limited number of reported patent cases litigated to judgment involving 

foreign firms in China. The Chinese government does not publish all of its judicial 

opinions, which makes finding information about such cases difficult. One highly 

publicized case is Chint v. Schneider. The Chint Group (a Chinese firm based in 

Wenzhou, Zhejiang Province) sued Schneider Electric Low Voltage Co., Ltd. (a Tianjinbased company that is 75 percent owned by the French company Schneider Electric) in 

the Wenzhou Intermediate People’s Court. The Chint Group, China’s largest maker of 

low-voltage electrical products, claimed that Schneider infringed certain of its utility 

model patents. Schneider asserted that Chint’s utility model patents were invalid because 

Schneider had prior invention patents in other jurisdictions covering the same technology. 

However, the patent law existing in China at the time did not recognize prior use or sale 

outside of China as “prior art” that could invalidate a utility model patent. Chint Group 

prevailed in 2007 and was awarded a judgment of approximately $45 million, the largest 

ever awarded in an intellectual property case in China. After two years of appeal, 

Schneider agreed to settle the case in 2009 for half the original award.38

34 Industry official, telephone interview with USITC staff, July 9, 2010; industry officials, interviews 

with USITC staff, Washington, DC, May 12 and June 2, 2010. 35 Industry officials, interviews by USITC staff, Washington, DC, July 15, 2010; industry officials, 

interviews by USITC staff, Beijing, China, September 8, 2010; see also Xiao, “Interview on Patent 

Infringement and Litigation,” n.d.; Bai, “Yes, China Does Protect Intellectual Property,” February 11, 2010. 36 Industry officials, telephone interviews by USITC staff, July 29 and August 3, 2010. 37 Leviton, “Leviton China Subsidiary Prevails,” March 22, 2010. See also the following discussion of 

Chint v. Schneider. 38 Reuters, “Schneider Settles 3-year Chint Patent Suit,” April 15, 2009. 
4-9 

Some observers have pointed to this case as evidence that the Chinese courts unfairly 

enforce IP laws to advance Chinese interests.39 Others, however, have said that the case 

was an anomaly that does not provide any insight into Chinese IPR enforcement, and 

note that the average damages award in IP litigation remains very low.40 As noted earlier, 

China subsequently acknowledged the shortcomings of its approach to prior art and 

amended the patent law to adopt an absolute novelty standard effective October 2009. 

Two other recent cases were resolved against the Chinese companies involved. In one, 

German bus manufacturer Neoplan Bus sued Zhongwei Bus and Coach, its parent Zonda 

Industrial Group, and its sales agent Beijing Zhongtong Xinghua Vehicle Sales in the 

Beijing No. 1 Intermediate People’s Court for infringing Neoplan’s design patent that 

covered a style of coach bus. In 2009, the German company was awarded damages of 

RMB 21.16 million (approximately $3.23 million) after Zonda could not prove that it 

designed its infringing bus. Another recent case involved an invention patent covering 

electric controls used in teakettles. The case was filed in Beijing in December 2008 by 

Strix Ltd., a British firm, against two Chinese companies that manufactured electriccontrol components and two Chinese kettle manufacturers who used the infringing 

components in their kettles. In January 2010, the Beijing No. 1 Intermediate People’s 

Court awarded Strix RMB 9.1 million (approximately $1.36 million). 

While some observers claim that the difference between the damages awarded to a 

foreign company (Neoplan or Strix) and those awarded to a Chinese company (Chint) is 

evidence of discrimination, others assert that the Neoplan and Strix cases demonstrate 

that foreign firms can be successful in patent infringement litigation. However, the small 

sample size and different technologies make such comparisons difficult. 

Trade Secret Misappropriation in China 

A trade secret is technical or business information that is unknown to the public and 

brings economic benefits to the owner, and for which the owner has adopted measures to 

maintain its confidentiality. Trade secret owners protect their IP through reasonable 

internal measures to maintain their secrecy; unlike copyrights, patents, and trademarks, 

they cannot be registered with administrative agencies. In the event that trade secrets are 

misappropriated, China has a legal framework in place to support a judicial or 

administrative claim. 41

U.S. industry representatives report that they use a range of measures to protect their 

trade secrets in China, including increasing the physical security of their buildings and 

carefully controlling access, adjusting and compartmentalizing work processes so that 

employees have no access to information they are not cleared for, and maintaining 

computer servers outside of China so that local employees are unable to access 

 39 Industry officials, telephone interviews by USITC staff, July 9 and 29, 2010; industry officials, 

interviews by USITC staff, Washington, DC, May 15 and June 2, 2010; McGregor, China’s Drive for 

“Indigenous Innovation,” July 2010, 26. 40 Industry officials, telephone interviews by USITC staff, July 22, 29, and August 3, 2010. See chapter 1. 41 U.S. Embassy, Beijing, “Intellectual Property Rights in China, Trade Secrets,” n.d. (accessed August 5, 

2010). Trade secret definitions and mechanisms for asserting claims are discussed in chapter 1. 
4-10 

 

unauthorized information from those servers.42 Nonetheless, several representatives of 

high-tech industries noted that they expect to lose at least some of their trade secrets over 

time, even after taking extensive precautions, and that their most important strategy is to 

innovate quickly enough to have the next generation of technology ready for market by 

the time that their competitors are ready to introduce products based on the 

misappropriated IP.43

The following section identifies the wide range of industries that may be particularly 

affected by trade secret misappropriation in China and lists groups that potentially may 

be involved in misappropriation—including employees, joint venture partners, computer 

hackers, and regulatory agencies—and discusses particular enforcement issues that have 

arisen in reported cases in China and the United States. 

Industries Affected by Trade Secret Misappropriation 

Almost all industries reportedly rely on trade secrets to protect their valuable business 

information in China.44 There are, however, few published cases in China in which U.S. 

or foreign firms have asserted trade secret misappropriation. Nevertheless, a sampling of 

trade secrets-related court cases between Chinese companies spotlights a range of 

industries where such disputes have arisen, including metals manufacturing, food recipes, 

pottery techniques, and electronic engineering technology.45 

Potential Infringers of Trade Secrets 

Trade secret misappropriation can be carried out by various individuals and groups. 

Industry representatives report a number of scenarios, including misappropriation by 

employees, joint venture partners, and computer hackers, and the leakage of test data by 

regulatory agencies in China. 

Employees: Employees who steal company secrets and take them to a new employer, or 

use such information to start a new company are a frequent source of trade secret 

misappropriation.46 According to one observer, Chinese employees of multinationals may 

be more frequently tempted to divulge trade secrets than employees outside of China 

because in China many people offer to buy such information.47 

42 USITC, hearing transcript, June 15, 2010, 304–5 (testimony of Christian Murck, American Chamber of 

Commerce in China); industry officials, interviews by USITC staff, Beijing, China, September 8, 2010; and 

industry officials, interviews by USITC staff, Shanghai, China, September 15, 2010. 43 Industry officials, telephone interviews by USITC staff, July 2 and July 7, 2010; industry officials, 

interviews by USITC staff, Beijing, China, September 8, 2010; and industry officials, interviews by USITC 

staff, Shanghai, China, September 15, 2010. 44 Industry official, telephone interview by USITC staff, July 22, 2010; industry officials, interviews by 

USITC staff, Beijing, China, September 8, 2010. The OECD notes that food and beverage companies may 

particularly rely on trade secrets for their proprietary recipes. OECD, The Economic Impact of Counterfeiting 

and Piracy, 2008, 328. 45 Pagnatarro, “The Google Challenge,” 2007, 625–32. 

46 Industry officials, interviews by USITC staff, Washington, DC, July 15, 2010; industry officials, 

interviews by USITC staff, Shanghai, China, September 15, 2010; and Pagnatarro, “The Google Challenge,” 

2007, 625–32. 47 Industry official, telephone interview by USITC staff, July 22, 2010. 
4-11 

 

Chinese courts have enforced employee contracts that preclude the disclosure of trade 

secrets. Such cases typically are brought against the former employee, not the new 

employer, because of the practical difficulties of establishing the involvement of the new 

employer (particularly given the preference for written evidence). Under these 

circumstances, damage awards tend to be relatively small and non-deterrent.48 

The Commission recently issued an exclusion order that prevented the importation into 

the United States of certain cast steel railway wheels manufactured in China on the basis 

of trade secret misappropriation by employees.49 The Commission found that the TianRui 

Group (Henan Province, China) and related companies hired away nine employees from 

the Chinese licensee of the U.S. firm, Amstead Industry, and that the employees 

disclosed trade secrets, including certain technical documents, to their new employer.50 

Joint venture partners: Although U.S. industry representatives have stated that some 

companies experience trade secret misappropriation by their joint venture partners, the 

extent of such infringement is unclear. 51 One source noted that problems arise when 

companies setting up a new production facility in China are required to partner with a 

Chinese design firm to build the facility. The design of a production facility often 

includes valuable trade secrets, some design firms reportedly have no qualms about 

disclosing those secrets to the foreign firm’s competitors. In this way, trade secrets can be 

lost before production even begins.52

Allegations of misappropriation also have arisen in cases where foreign companies began 

operations through joint ventures in China and soon found themselves competing with 

their former joint venture partners.53 In one reported example, German-based Siemens 

joined with China National Railway (CNR) to build China’s first high-speed rail line 

between Beijing and Tianjin for an estimated contract value of almost $1 billion; this 

project was successfully concluded in 2008. Shortly thereafter, Siemens announced that it 

had won a contract to build a high-speed rail line between Beijing and Shanghai, but 

China’s Ministry of Railways ultimately awarded the $5.7 billion contract to CNR, with 

Siemens effectively demoted to a subcontractor role.54 While details of the technology 

transfer process are not public, it appears that CNR did benefit from its joint venture 

relationship with Siemens and has now become an important competitor in the industry.55 

48 Pagnatarro, “The Google Challenge,” 2007, 631; industry official, telephone interview by USITC staff, 

July 26, 2010. 49 Commission opinion, In re Certain Cast Steel Railway Wheels, Processes for Manufacturing or 

Relating to Same and Certain Products Containing Same, inv. no. 337-TA-655, March 2, 2010. 50 Initial determination, In re Certain Cast Steel Railway Wheels, Processes for Manufacturing or 

Relating to Same and Certain Products Containing Same, inv. no. 337-TA-655, October 16, 2009. The 

Commission determined not to review the findings of its administrative law judge. Notice, 74 Fed. Reg.

68282–83, December 23, 2009. 51 Industry officials, interviews by USITC staff, Washington, DC, May 12 and July 15, 2010; industry 

officials, interview by USITC staff, Shanghai, China, September 15, 2010. 52 Industry officials, interview by USITC staff, Shanghai, China, September 15, 2010. 53 Ranjard and Misonne, “Study 12: Exploring China’s IP Environment,” 15; McGregor, China’s Drive 

for “Indigenous Innovation,” July 2010, 7. 54 Siemens is reportedly supplying CNR with approximately $1 billion in components for the project. 

McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 32–33. 55 McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 32–33; USITC, hearing transcript, 

June 15–16, 2010, 256–57 (testimony of Christian Murck, Amcham-China). 
4-12 

n to the 

chools.

competitors a substantial unfair advantage in seeking regulatory approval or market 

 

More positively, some U.S. industry representatives report that their joint venture 

partners provide important benefits when it comes to trade secrets. Benefits may be both 

tactical (the partner may explain which protection measures are most effective in China) 

and strategic (a Chinese partner may be more likely to prevail in an IPR dispute in 

court).56

Computer hackers: Industrial espionage through computer hacking originating in China 

is an area of growing concern to firms in the United States and throughout the world.57

Although there is very little concrete information on the scope of trade secret 

misappropriation through Chinese computer hacking, it is clear that China is an important 

venue for hacking and the development of malicious software.58

The issue rose to prominence in the United States following Google’s revelation of a 

serious breach of its corporate network in December 2009. Hackers allegedly stole IP, 

including Google’s source code for its sign-on software, and targeted the Gmail accounts 

of human rights activists.59 It was subsequently reported that 33 other firms were also 

targeted, including financial institutions and defense contractors. 60 The attacks were 

attributed to computers at two educational institutions in China: Shanghai Jiaotong 

University and the Lanxiang Vocational School. The latter reportedly was established 

with military support and continues to train computer scientists for the Chinese 

military.61 There is debate as to whether the schools have been used as camouflage for 

government operations or may themselves have been the victim of a “false flag” 

intelligence operation in which the true attacker misattributed the intrusio

62 s

Regulatory agencies: Another avenue for trade secret misappropriation is the leakage of 

protected data from regulatory authorities.63 In certain industries for which safety is a 

concern—for example, pharmaceuticals, medical devices, and plant varieties—regulatory 

agencies in China and elsewhere require companies to submit confidential data to prove 

the safety of their products. Given the significant investment of time and resources 

undertaken by originating companies in creating such data, its leakage can give 

56 Industry official, interview by USITC staff, July 26, 2010; industry officials, interview by USITC staff, 

Beijing, China, September 8, 2010. 57 Industry officials, interviews by USITC staff, Washington, DC, July 20 and August 3, 2010; industry 

official, telephone interview by USITC staff, August 4, 2010. 58 Industry officials, interviews by USITC staff, Washington, DC, July 20 and August 3, 2010; industry 

official, telephone interview by USITC staff, August 4, 2010. According to McAfee, a U.S. security 

technology firm, 1.1 million computers were commandeered by hackers for malicious purposes in China in 

the last quarter of 2009, more than in any other country and in addition to approximately 10 million 

computers that had been previously infected. Nakashima, “China Leads the World,” February 15, 2010. 59 Zetter, “Google Hack Attack Was Ultra Sophisticated,” January 14, 2010; Lum, “U.S.-China Relations: 

Policy Issues,” March 12, 2010. 60 Zetter, “Google Hackers Targeted Source Code,” January 13, 2010. Only one of the firms (Adobe) has 

been publicly named. Other companies believed to have been attacked are Dow Chemical and Northrop 

Grumman. CBS News, “Google Not Only Target of China Hackers,” January 24, 2010. 61 Markoff and Barboza, “2 China Schools Said to Be Tied to Online Attacks,” February 18, 2010. 62 Industry official, telephone interview by USITC staff, July 20, 2010. 63 Under TRIPS (Article 39.3), test data submitted to governments in order to obtain marketing approval 

for new pharmaceutical or agricultural chemicals must also be protected against unfair commercial use. 
4-13 

 

opportunities. USTR and industry representatives note a continued concern about the 

insufficient protection of such data in China.64 

Concern about leakage of data by regulatory agencies has also surfaced for software 

encryption companies operating in China. The government has recently begun requiring 

software companies to submit certain source codes to the government in order to obtain 

China Compulsory Certification (CCC) approval before they can market software 

encryption products in China.65 U.S. industry representatives have voiced concerns that 

their IP could be subject to leakage from China’s Office of Security Commercial Code 

Administration or from the government-owned computer software laboratories that 

perform product tests for the government.66

Trade Secret Enforcement Challenges in China 

Trade secret owners may use administrative and judicial actions to address trade secret 

misappropriation. Administrative actions are handled by the Administration for Industry 

and Commerce (AIC). The AIC has the power to investigate the allegations, order the 

return of material containing trade secrets and, in certain circumstances, order the 

destruction of goods using the trade secrets. 67 It does not have the power to award 

damages; if damages are sought, a judicial action is necessary.68

Both civil and criminal penalties are provided for trade secret misappropriation. The most 

prominent criminal cases for trade secret misappropriation have been brought by the 

Chinese government against foreigners. For example, in 2009, the Chinese government 

imprisoned a Chinese-born American automotive engineer for 17 months while he was 

awaiting trial on allegations that he misused trade secrets. The engineer asserted that 

Chinese investigators threatened him with multimillion-dollar fines unless he turned over 

the rights to his U.S. patent to his former Chinese business partner. He was released from 

detention in May 2010.69 Staff research did not identify any criminal trade secret cases in 

China that were undertaken at the request of U.S. firms. 

With regard to civil litigation, the published trade secrets cases reviewed primarily 

involved domestic companies. In a number of the cases, courts found that the trade 

secrets law had been violated; however, most awarded low damage amounts. 70 As 

explained in chapter 1, court awards of low, non-deterrent civil damages have been noted 

as a concern by industry representatives across IPR sectors.71 

64 USTR, Special 301 Report, 2010, 22; industry officials, interviews by USITC staff, Washington, DC, 

June 22, 23, and 25, 2010; and industry officials, interviews by USITC staff, Shanghai, China, September 15, 

2010. 65 The standards aspects of this issue are discussed in chapter 5. 

66 McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 30; USITC, hearing transcript, 

June 15, 2010, 306 (testimony of Mark Bohannon, Software & Information Industry Association). 67 Bai, “Overview of Trade Secret Protection in China,” April 11, 2007, 3. 

68 The Commission’s fieldwork did not reveal any information regarding the frequency or effectiveness 

of administrative procedures in trade secret cases. 69 AP, “China Holds Engineer on Trade Secrets Charge,” December 17, 2009. A Chinese-born geologist 

has been detained since November 2007 on charges that he provided state secrets to foreigners. Lum, “U.S.-

China Relations,” March 12, 2010, 6. 70 Pagnatarro, “The Google Challenge,” 2007, 631–32. 

71 Industry officials, telephone interviews by USITC staff, July 9, 27 and 29, 2010. See also chapter 1. 
4-14 

 

Industry representatives further note that it is more difficult to protect and enforce trade 

secrets in China because, as mentioned earlier, there is no U.S.-style discovery. Written 

evidence is the form of evidence that carries the most weight in Chinese courts; witness 

testimony often is not considered sufficient. Thus, written evidence that a defendant 

agreed to treat particular information as a trade secret, that he or she received the 

confidential information, and that the information was disclosed may all be required to 

successfully state a claim.72 Industry representatives have suggested that the evidentiary 

hurdles for establishing a trade secret case may partially explain the small volume of such 

cases.73 

Trade Secret Enforcement Efforts in the United States 

Several U.S. companies have attempted to enforce their trade secret rights through the 

U.S. court system rather than in China. In one particularly well-known case from 2003, 

Cisco Systems of California sued Huawei Technologies of Shenzhen, China (both 

providers of telecommunications equipment and services) in U.S. courts, alleging that 

Huawei had misappropriated trade secrets related to the software used in Cisco’s network 

routers. The case was eventually settled out of court after Huawei agreed to remove the 

offending products from the market and replace the disputed software in Huawei 

products.74

There have also been a number of criminal trade-secret theft actions involving employees 

of U.S. companies found to have misappropriated trade secrets for the benefit of Chinese 

companies. For example, a former chemist for an Illinois paint manufacturer recently 

pled guilty to stealing formulas and other proprietary information worth up to $20 million 

in connection with his acceptance of a new position with Nippon Paint of Shanghai.75

Earlier this year, a former research chemist for E.I. du Pont de Nemours pled guilty to 

attempting to transfer to the Peking College University of Engineering certain trade 

secrets relating to organic light-emitting diodes.76 In late 2008, two former employees of 

Metaldyne Corporation were convicted of transferring certain Metaldyne trade secrets to 

a Metaldyne competitor, Huafu Industry Company, of Chongqing.77 

72 Bai, “Overview of Trade Secrets Protection in China,” April 11, 2007, 11. 73 Industry official, telephone interview by USITC staff, July 22, 2010; industry officials interviews by 

USITC staff, Shanghai, China, September 15, 2010. 74 Simons, “The Huawei Way,” January 16, 2006. 

75 USDOJ, “Former Paint Manufacturing Chemist Pleads Guilty to Stealing Trade Secrets Valued up to 

$20 Million,” September 1, 2010. 76 USDOJ, “Former DuPont Chemist Pleads Guilty,” June 8, 2010. 77 USDOJ, “Former Metaldyne Employees Plead Guilty to Conspiracy to Steal Confidential Business 

Information to Benefit Chinese Competitor,” September 15, 2008. 
5-1

CHAPTER 5 

China’s Indigenous Innovation Policies 

In recent years, China has introduced a number of policies aimed at increasing the level 

of scientific and technological innovation originating within the country, as well as 

expanding the domestic added value in goods produced in China’s factories. These 

indigenous innovation policies have generated significant interest and concern among 

governments and businesses in the United States and other countries. From China’s 

perspective, its indigenous innovation policies are part of a legitimate and necessary 

effort to raise the level of domestic innovation to respond to pressing economic 

development challenges. However, China’s focus on promoting market opportunities for 

innovations developed exclusively in China, by Chinese firms, has raised concerns that 

these policies are ultimately aimed at denying foreign firms access to business 

opportunities presented by the large and fast-growing Chinese economy. Arenas through 

which China is implementing policies related to indigenous innovation include 

government procurement, technical standards, competition policy under the antimonopoly law (AML), taxation policy, and IPR protection and enforcement.1

 Moreover, 

foreign businesses have reportedly been pressured to transfer know-how and technology 

to Chinese firms in order to gain access to the Chinese market. Businesses are concerned 

that this IP ultimately will be used by Chinese companies competing against them in 

China and in third-country markets. 

Foreign companies active in China have repeatedly stated that they support China’s 

efforts to increase its innovation capabilities; however, they fear that China’s introduction 

of policies favoring domestic companies and products that rely on Chinese-owned IP will 

erode opportunities for foreign investors in China. 2 In fact, several U.S. industry 

representatives have publicly stated that they see indigenous innovation policies as a 

greater threat to their business in China than other issues more often mentioned in the 

press, including IPR infringement and China’s currency exchange rate. 3 The U.S. 

government has also stated that indigenous innovation and discriminatory industrial 

policies are important issues on the bilateral policy agenda.4 On the other hand, China’s 

leaders do not agree that the climate for foreign investment in China is deteriorating. In a 

July 2010 speech before foreign investors, for example, Premier Wen Jiabao noted that 

foreign direct investment (FDI) into China through June 2010 had surged compared to a 

year earlier, citing this trend as evidence that foreign investors did not seem overly 

concerned about policy changes.5

 

 1

 McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 6–7; USITC, hearing transcript, 

Washington, DC, June 15, 2010, 181–83 (testimony of Christian Murck, AmCham-China); Stewart and 

Stewart, written submission to the USITC, July 8, 2010; industry official, telephone interview by USITC staff, 

July 9, 2010; industry officials, interviews by USITC staff, May 12, June 2, July 2, 7, and 15, 2010. 2

 USITC, hearing transcript, Washington, DC, June 15, 2010, 191–92 (testimony of Calman Cohen, 

Emergency Committee For American Trade); USITC, hearing transcript, Washington, DC, June 15, 2010, 

131–32 (testimony of Shaun Donnelly, National Association of Manufacturers); North American and 

European Industry Groups, “Industry Comments on the Draft Notice Launching the National Indigenous 

Innovation Product Accreditation Work for 2010,” May 10, 2010. 3

 USITC, hearing transcript, Washington, DC, June 15, 2010, 170–71 (testimony of Jeremie Waterman, 

U.S. Chamber of Commerce); USITC, hearing transcript, Washington, DC, June 15, 2010, 196–97 

(testimony of Robert Holleyman, Business Software Alliance); USTR, Special 301 Report, 2010, 21. 4

 See, for example Kirk, statement to the Senate Committee on Finance, June 23, 2010; Politi, “US to 

Press China on Business,” May 20, 2010. 5 Xinhua News, “Xinhua ‘China Focus’,” July 19, 2010. 
5-2

China’s policies, however, are evolving extremely quickly. Many policies remain in draft 

form, many of the implementing regulations for major laws are still not in place, and 

enforcement of most indigenous innovation policies has not yet begun. Much of the 

concern thus reflects fear of future Chinese policies and of the way new laws may be 

implemented, and not simply objections to policy actions that the Chinese government 

has already taken. It remains unclear how the effects of the new policies will play out. 

This chapter describes China’s policies promoting indigenous innovation, lists the 

industries that are primarily affected, and discusses some of the concerns that the policies 

have raised in the business community, including how such policies may work together to 

help build up Chinese “national champion” companies active in high-tech industries. The 

chapter then describes indigenous innovation policies in several specific domains, 

including China’s government procurement process, setting of technical standards, and 

AML enforcement. 

Chinese Efforts to Foster Indigenous Innovation 

Although China’s indigenous innovation policies are most closely associated with the 

January 2006 Medium- to Long-Term Plan for the Development of Science and 

Technology (MLP), discussed in more detail below, many observers note that promoting 

innovation and technological development has long been an important theme for the 

Chinese government. For example, the 863 Program (or State High-Tech Development 

Plan), established in 1986, is a government-funded research and development (R&D) 

program aimed at diversifying China’s R&D efforts away from a purely military focus 

toward more civilian and dual-use technologies, such as satellites, computers, robotics, 

biotechnology, energy, and space exploration, while also moving China away from the 

obligation to pay royalties for foreign technologies used in products made in China.6

 

In 1995, China’s National Conference on Science and Technology elevated the goal of 

scientific and technological development to a national policy priority. A major report to 

the central leadership in 1997, “The Coming of the Knowledge-Based Economy and the 

Construction of the National Innovation System,” led to the incorporation of the concept 

of a “national innovation system” in China’s evolving science and technology policies. 

Chinese innovation policy increasingly began to address areas beyond R&D funding, 

including industrial research, IPR, and venture capital. 7 The MLP itself was the 

culmination of an extended policymaking process that formally began in 2003 (shortly 

after China’s World Trade Organization (WTO) accession) and involved more than 2,000 

scientists, engineers, and corporate executives from across China.8

 

Essential Elements and Themes of the MLP 

Most observers attribute the official institution of China’s indigenous innovation policies 

to the MLP. The goal of indigenous innovation, as articulated in the MLP, is to enable 

China to become an “innovation-oriented society” and a global leader in science and 

technology. Specifically, indigenous innovation policies encompass several of the 

Chinese government’s long-term policy goals, including promoting domestic companies’ 

 6

 NFTC, China’s Promotion of the Renewable Electric Power Equipment Industry, March 2010, 19–20. 7

 Suttmeier, Cao, and Simon, “China’s Innovation Challenge,” Summer 2006, 81–82. 8

 Serger and Breidne, “China’s Fifteen-Year Plan for Science and Technology,” July 2007, 149–50. 
5-3

 

contributions to the Chinese economy rather than relying on foreign know-how and 

technology, building domestic R&D capabilities to upgrade Chinese firms’ innovative 

capacity, and generally increasing the share of added value that domestic Chinese 

companies contribute to China’s economy.9

The MLP included several specific innovation targets for China to reach by 2020, 

including: 

 Increasing R&D investment to 2.5 percent of gross domestic 

product (GDP) (a level comparable to that of the United States), up 

from 1.3 percent in 2005; 

 Raising the contribution made by technological advances to 

economic growth to more than 60 percent; 

 Limiting dependence on imported technology to no more than 

30 percent (from an estimated 60 percent in 2006); 

 Becoming one of the top five countries in terms of invention 

patents granted to its citizens; and 

 Ensuring that Chinese-authored scientific papers are among the 

most cited in the world.10

Chinese government ministries and agencies at all levels are actively implementing the 

central ideas of the MLP through a wide variety of policies under their separate 

jurisdictions.11

As noted, an important theme of the MLP is the effort to reduce dependence on foreign 

technology and foreign companies. China views its dependence on foreign technology as 

problematic in a number of ways. First, realizing that foreign IP owners collect 

substantial royalties on the sale of Chinese manufactured goods, Chinese government 

leaders have concluded that market dominance depends on owning IP and being a 

primary developer of international technical standards.12 Second, Chinese policymakers 

would like to improve domestic technology to address serious societal needs such as 

energy, resource constraints, environmental protection, and public health. Third, China 

has national security concerns related to dependence on foreign technology. As an 

example, China has expressed objections to U.S. export control laws, particularly as 

9

 Zhang et al., Promoting Enterprise-Led Innovation in China, 2009, 2–3; Cao, Suttmeier, and Simon, 

“China’s 15-year Science and Technology Plan,” December 2006. 10 Cao, Suttmeier, and Simon, “China’s 15-year Science and Technology Plan,” December 2006, 38; 

McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 14–15. 11 The National Development and Reform Commission (NDRC) is responsible for the largest number of 

these supporting policies (29), followed by the Ministry of Finance (MOF) with 21 policies, the Ministry of 

Science and Technology (MOST) with 17 policies, and the Ministry of Education (MOE) with 9 policies. 

Serger and Breidne, “China’s Fifteen-Year Plan for Science and Technology,” July 2007, 151–56. 12 Suttmeier, Cao, and Simon, “China’s Innovation Challenge,” Summer 2006, 79. According to one 

study of China’s exports, for example, “the domestic value-added component of the value of exported 

electronic and information technology products, while growing, remains quite low. Even in the most recent 

years for which data are available, more than 70 percent of the value of these exports is comprised of 

imported inputs.” Branstetter and Foley, “Facts and Fallacies about U.S. FDI in China,” October 2007, 20 

and figure 5. 
5-4

.

 

applied to dual-use technologies, which China sees as limiting its companies’ access to 

essential foreign technology.13

Another important focus of the MLP is policies that specifically favor products and 

technologies that use IP and brands developed by Chinese companies. 14 The goal of 

promoting Chinese IP was reinforced in China’s 2008 National Intellectual Property 

Strategy (NIPS). The NIPS urges the government to “guide and support [Chinese] market 

entities to create and utilize intellectual property” through a variety of policies linked to 

indigenous innovation.15 The NIPS sets various targets, including significantly increasing 

the level and quantity of China’s indigenous IP, developing a group of internationally 

famous brands, increasing Chinese value in core copyright industries, and effectively 

protecting trade secrets.16 Similarly, recent guidance from the Supreme People’s Court on 

the implementation of indigenous innovation policies instructs the courts to (1) support 

and promote indigenous innovation by helping to promote the creation of indigenous 

famous brands and the development of a brand economy, and (2) increase the level of 

protection of indigenous IPR on key technologies.17 Because the guidance is new, it is 

not yet clear how it will be implemented 18

Industries Affected by Indigenous Innovation Policies 

The MLP references a broad set of focus areas for indigenous innovation efforts that are 

linked to national needs, including agriculture, energy, environment, manufacturing, and 

national defense. Separately, the MLP lists several frontier technologies of interest, 

including biotechnology, lasers, new materials, and ocean technology. In addition, the 

MLP identifies 17 specific, large-scale science and engineering “megaprojects” that are 

to receive special attention and funding, such as control and treatment of AIDS and other 

major diseases; core electronic components, including semiconductors; large aircraft; and 

water pollution control and treatment. However, under the MLP, no industry has been 

explicitly excluded from the goal of raising domestic innovation levels.19 

Generally, indigenous innovation policies focus on emerging, high-tech industries for 

which innovation broadly, and R&D and patents more specifically, are seen as playing an 

important role. Several Chinese provinces have developed catalogues listing accredited 

indigenous innovation products, with a broad focus on these high-tech industries. 

According to non-Chinese observers, indigenous innovation policies appear to be 

13 U.S. export control laws regarding dual-use technologies apply to many products that are important to 

U.S. national security but may also have uses that are not related to national security. Cao, Suttmeier, and 

Simon, “China’s 15-year Science and Technology Plan,” December 2006, 39; industry official, interview by 

USITC staff, July 30, 2010. 14 Serger and Breidne, “China’s Fifteen-Year Plan for Science and Technology,” July 2007, 137, 145; 

USCBC, “Issue Brief: New Developments in China’s Domestic Innovation and Procurement Policies,” 

January 2010. 15 Government of China, “Outline of the National Intellectual Property Strategy,” June 2008, Article 

III.2(11). 16 Ibid., Article II.2(7). 

17 See “Opinions on the Provision of Judicial Support and Service,” Supreme People’s Court, 

http://www.chinacourt.org/flwk/show.php?file_id=144434 (link to text in Chinese), June 29, 2010. 18 USITC, hearing transcript, Washington, DC, June 15, 2010, 343 (testimony of Chris Israel, PCT 

Government Relations). 19 The complete list of key areas, frontier technologies, and megaprojects is available in Cao, Suttmeier, 

and Simon, “China’s 15-year Science and Technology Plan,” December 2006, 43, box 2. McGregor, China’s 

Drive for “Indigenous Innovation,” July 2010, app. 1, provides details on 13 of the megaprojects; the author 

notes that the details are not available on the remaining projects, which are believed to be classified military 

projects. 
5-5

particularly prominent for automobiles (including electric vehicles), renewable energy, 

nanotechnology, civil aviation, and health care (particularly medical devices).20 

The central government is currently considering an accreditation policy for indigenous 

innovation products (explained in further detail below). Accredited products will be 

included in a catalogue, allowing them to receive preferences for government 

procurement.21 Once the policy is finalized, the Chinese government is expected to offer 

indigenous innovation accreditation to products from six industries: computer and 

application equipment, telecommunications products, modern office equipment, software, 

new energy and equipment, and high-efficiency energy-saving products. 

Concerns Regarding Indigenous Innovation 

China appears to be promoting indigenous innovation and sales of high-tech products by 

domestic firms at the expense of foreign firms. Overarching concerns are that China’s 

approach to spurring domestic innovation varies significantly from global norms, 

discriminates against foreign companies operating in China, and changes the rules for 

foreign involvement in the economy midstream, threatening the expected value of current 

foreign investment in the Chinese economy.22 This is compounded by a concern that 

foreign companies will need to share sensitive and proprietary technology with Chinese 

firms or government agencies in order to reap the full benefits of their investments in 

China. As noted by one U.S. industry representative: 

China’s indigenous innovation policy’s chief aim is to give a leg 

up to domestic producers by adopting rules and regulations 

favoring products that use Chinese-developed ideas and 

technologies. Such policies more often than not do this at the 

expense of foreign players who have worked for decades in 

partnership with China to promote growth and prosperity and 

deliver innovative products to people of that country.23

Chinese requirements for R&D that takes place exclusively in China—for example, to 

qualify for certain government procurement purchases—are also broadly incompatible 

with the highly successful innovation policies of many global companies. U.S.-based 

multinational firms have noted that China’s apparent desire to rely on homegrown 

innovation runs counter to the integrated, globalized R&D systems on which many 

multinational companies rely—systems in which activities in the United States, Europe, 

and China complement each other. Patent applications, for example, frequently list 

 20 USITC, hearing transcript, June 15, 2010, 269–70 (testimony of Christian Murck, American Chamber 

of Commerce in China); foreign government official, telephone interview by USITC staff, July 9, 2010; 

industry officials, interviews by USITC staff, July 15, 2010. 21 USCBC, “Issues Brief: China’s Domestic Innovation and Procurement Policies,” May 2010. 22 McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 23; foreign government official, 

telephone interview by USITC staff, July 9, 2010; USITC, hearing transcript, Washington, DC, June 15, 2010, 

55–56 (testimony of Calman Cohen, Emergency Committee For American Trade). 23 USITC, hearing transcript, Washington, DC, June 15, 2010, 217 (testimony of John Neuffer, 

Information Technology Industry Council). 
5-6

 

engineers based in China together with engineers based elsewhere. This collaborative 

system makes it quite difficult to tie the IP for a given product to a single country.24 

The “Web of Indigenous Innovation Policies” 

A number of observers have referred to a “web” of interrelated policies in various policy 

areas that work together to favor domestic Chinese companies—particularly “national 

champion” companies (generally large SOEs with highly recognizable Chinese brands)—

over foreign companies in the Chinese market. This policy web can make it quite difficult 

for U.S. firms to compete in certain high-tech product areas in China, and it has the 

potential to be expanded to additional product areas. 25 Depending on how they are 

implemented, the final policies may work together, sometimes in subtle ways, both to 

increase the level of indigenous innovation by Chinese companies and to boost the 

competitive position of those same firms.26 From this point of view, to understand the 

implications for the United States, it is imperative to see China’s indigenous innovation 

policies as a collective whole, rather than as a series of discrete policies. As one industry 

representative testified: 

We’ve understood the problem with China in very discrete ways. 

There was an IP enforcement problem. There was a joint venture 

problem. There was a participation in standards problem. . . . What 

has changed certainly in the last two years is that there is now a 

recognition that the issue of industrial indigenous innovation . . . is 

now a structural issue in our U.S.-China relationship.... And the 

way these policies are . . . intricately woven together . . . directly 

affect[s] the ability of . . . U.S. companies to compete in China 

with the potential for job loss here and [adverse effects on] our 

global competitiveness.27

As some observers see it, China’s principal goal is to actively build a relatively small 

number of SOEs into “national champions” that will be large enough, and technologically 

advanced enough, to compete globally with today’s high-tech market leaders, most of 

which are based in the United States, the European Union, and Japan. China’s indigenous 

innovation policies in several areas—the government’s procurement and technical 

standards, its willingness to provide funding to Chinese SOEs, and, potentially, its 

enforcement of the AML—are combining to create powerful Chinese companies that can 

become market leaders in high-tech industries. At the same time, these policies 

discriminate in a coordinated way against foreign competitors. As suggested by several 

industry representatives, the process of building a Chinese national champion firm works 

approximately as depicted in figure 5.1. The individual policy areas are described in 

greater detail below. 

24 Intellectual Property Owners Association, written submission to the USITC, July 9, 2010; USITC, 

hearing transcript, Washington, DC, June 15, 2010, 53, 90–91 (testimony of Calman Cohen, Emergency 

Committee for American Trade); USITC, hearing transcript, Washington, DC, June 15, 2010, 75 (testimony 

of Lee Branstetter, Carnegie Mellon University). 25 USITC, hearing transcript, Washington, DC, June 15, 2010, 168–69 (testimony of Jeremie Waterman, 

U.S. Chamber of Commerce); hearing transcript, Washington, DC, June 15, 2010, 213–14 (testimony of 

Mark Bohannon, Software & Information Industry Association); industry officials, interview by USITC staff, 

Washington, DC, July 15, 2010; industry officials, interviews by USITC staff, Beijing, September 8, 2010. 26 See particularly McGregor, China’s Drive for “Indigenous Innovation,” July 2010. 27 USITC, hearing transcript, Washington, DC, June 15, 2010, 274–75 (testimony of Mark Bohannon, 

Software & Information Industry Association). 
FIGURE 5.1 One view of creating Chinese “national champion” companies through indigenous 

innovation policies 

Source: Industry and academic representatives. 

5-7
5-8

The Reported Link Between Indigenous Innovation Policies and 

IPR Infringement in China 

Observers also see a close link between China’s indigenous innovation policies and IPR 

infringement activity in China. In this view, China uses the web of indigenous innovation 

policies described above to create a legal environment “that enables it to intervene in the 

market for IP, help its own companies to reinnovate competing IP as a substitute to 

American and other foreign technologies, and potentially misappropriate IP from U.S. 

and other foreign companies as components of its industrial policies and internal market 

regulations.” 28 The overarching themes in China’s indigenous innovation policies are 

reportedly to “(1) undermine and displace foreign IP while promoting its own IP; (2) 

leverage China's large domestic market to develop national champions, principally stateowned and state-invested enterprises; and (3) build on China's domestic successes by 

displacing competitors in foreign markets with the foreign IP it has reinnovated.”29

In contrast to the view that China’s indigenous innovation policies are closely 

coordinated and implemented in an intentional, overlapping web of policies, other 

observers argue that each of China’s government ministries charged with implementing 

the MLP acts in an uncoordinated way to fulfill its mandate in separate policy 

jurisdictions. In this view, this fairly incoherent system leads to a web of sometimes 

overlapping or contradictory policies at the central and provincial levels that foreign 

companies and governments encounter, rather than any coordinated effort by Chinese 

government agencies to access and appropriate foreign technology and IP.30

Government Procurement Policies and Indigenous 

Innovation 

The clearest manifestation of China’s indigenous innovation policies with regard to 

foreign companies is in the government procurement market. The MLP calls on 

government agencies to encourage and support innovative Chinese companies by 

purchasing their goods and services. A number of observers have agreed that the Chinese 

government is actively following this policy, using government procurement contracts to 

create a market for the products of Chinese companies and to set a benchmark level of 

acceptance within China for Chinese brands over foreign brands.31

China is not currently a signatory of the WTO Government Procurement Agreement 

(GPA) and so is not bound by the agreement’s provisions that ensure nondiscrimination

 28 USITC, hearing transcript, Washington, DC, June 15, 2010, 171–72 (testimony of Jeremie Waterman, 

U.S. Chamber of Commerce). In this context, reinnovation is similar to reverse engineering. 29 USITC, hearing transcript, Washington, DC, June 15, 2010, 171–72 (testimony of Jeremie Waterman, 

U.S. Chamber of Commerce). 30 Industry officials, interview by USITC staff, July 26, 2010; Simon, “Globalization, Indigenous 

Innovation, and China’s Emerging Technological Trajectory,” July 27, 2010. 31 Foreign government official, telephone interview by USITC staff, July 9, 2010; industry officials, 

interviews by USITC staff, May 12, July 7, and 15, 2010; USITC, hearing transcript, Washington, DC, June 

15, 2010, 95–96, 181, and 224 (testimonies of Lee Branstetter, Carnegie Mellon University, and Christian 

Murck, American Chamber of Commerce in China). 
5-9

 

against foreign firms in awarding government procurement contracts.32 China is currently 

in negotiations with WTO members to join the GPA; China stated at the time of its WTO 

accession that it would join the GPA as soon as possible, submitting its first offer in 2007 

and a revised offer in 2010.33 However, even though negotiations continue, U.S. and 

foreign industry groups have argued that current policies move China further away from 

that goal.34

National Accreditation for Indigenous Innovation Products 

China’s government procurement market for goods and services was valued at an 

estimated $88 billion per year in 2008, equal to 2 percent of China’s GDP and making up 

almost 10 percent of Chinese government expenditures. This figure, moreover, does not 

include significant levels of public investment in infrastructure projects; the American 

Chamber of Commerce in China estimates that public works projects account for at least 

50 percent of total Chinese government procurement funding,35 so the total annual value 

of government procurement contracts may be closer to $200 billion. 36 The primary 

central government measures concerning government procurement in China are 

summarized in table 5.1. 

U.S. business groups view the environment for foreign firms in China’s government 

procurement market as deteriorating. Several U.S. companies have reported “increasing 

difficulty in making sales to government-related entities in China,” including government 

agencies, public institutions such as schools and hospitals, and SOEs, although it is 

unclear whether there is a direct link between this new environment and China’s 

indigenous innovation policies. 37 Despite China’s WTO commitment that SOE 

procurement decisions should rely exclusively on commercial considerations, the Chinese 

government appears to encourage SOEs to purchase goods made by Chinese 

companies. 38 Even when SOEs are not required to abide by China’s government 

procurement regulations, it is reported that most SOEs implicitly honor regulations that 

establish preferences for Chinese-owned companies, driving down demand for U.S. 

products and services.39 In the renewable energy industry, for example, state-owned wind 

farms (which dominate renewable power generation in China) are reportedly applying the 

32 Membership in the GPA would require China to treat GPA parties’ products no less favorably than it 

treats domestic parties’ products. Furthermore, GPA parties may not treat domestic suppliers differently on 

the basis of degree of foreign ownership. Matechak and Gerson, “Can China’s Government Procurement 

Market Be Cracked?” May–June 2010. 33 USCBC, “PRC Government Procurement Policy,” July 2009; English.Eastday.com, “Experts Hail 

China's Procurement Offer,” July 17, 2010; AFP, “China Boosts Offer for WTO Pact on Government 

Contracts: US,” July 15, 2010. 34 North American and European Industry Groups, “Industry Comments on the Draft Notice,” May 10, 

2010. 35 Ahrens, “Innovation and the Visible Hand,” July 2010; AmCham-China, 2010 White Paper, 2010, 86, 

92; U.S. government officials, interviews by USITC staff, July 12, 2010. 36 Chinese government procurement of goods is covered by the Government Procurement Law, while 

public works projects, such as infrastructure development projects, are covered by the Bidding and Tendering 

Law. AmCham-China, 2010 White Paper, 2010, 86–92. 37 USCBC, “Issue Brief: New Developments in China’s Domestic Innovation and Procurement Policies,” 

January 2010. 38 AmCham-China, 2010 White Paper, 2010, 220; North American and European Industry Groups, 

“Industry Comments on the Draft Notice,” May 10, 2010. 39 USITC, hearing transcript, Washington, DC, June 15, 2010, 53 (testimony of Calman Cohen, 

Emergency Committee for American Trade). 
5-10

TABLE 5.1 Selected Chinese central government measures regarding government procurement 

Measure Date 

released 

Comments 

Bidding and Tendering 

Law 

January 

2000 

Outlines policies related to public works projects such as infrastructure 

development projects. 

Government Procurement 

Law 

2002 Primary law governing Chinese government procurement. Passed in 2002, but 

draft implementing regulations for the Government Procurement Law were 

only released in January 2010 and have not been finalized. Includes 

preferences for Chinese-made goods, when available. 

Administrative Measures 

for Accreditation of 

National Indigenous 

Innovative Products for 

Trial Implementation 

December 

2006 

State that accredited indigenous innovation products will receive preference in 

government procurement, and that applicants for such status should (1) own 

the IP or have the rights licensed for the products under consideration, and 

(2) have a trademark that is owned by a Chinese company and registered in 

China. 

Evaluation Measures on 

Indigenous Innovative 

Products for Procurement 

2007 Specify the advantages that certified indigenous innovation products enjoy in 

the government procurement process. Products classified as “indigenous 

innovation” are given a margin of 5–10 percent on their evaluative point 

system when price is the sole determining factor in a procurement decision. 

When factors beyond price are included in the decision process, indigenous 

innovation products may receive an additional 4–8 percent boost in their 

overall evaluations. The evaluation measures also specifically direct Chinese 

government agencies to use the procurement system to encourage the 

commercialization of products with indigenous innovation accreditation. 

Circular 618, on 

Launching the 2009 

National Indigenous 

Innovation Product 

Accreditation Work 

November 

2009 

Lays out, in draft form, the criteria for accrediting specific products for listing in 

the central government’s indigenous innovation product catalogue. The 

catalogue is expected to define the products available for procurement by 

Chinese central government agencies. According to the proposed regulation, 

to be included in the catalogue, a product must have been produced by an 

enterprise with full ownership of IP in China through its own R&D, or a 

Chinese enterprise that has legally obtained the Chinese IPR. In addition, the 

product trademark must be owned by a Chinese company registered in China, 

and any trademark associated with the product must be registered in China 

first and may not be restricted by foreign brands. The circular is particularly 

troubling because of its use of the nationality of IP as a market access 

condition. 

Draft Notice Launching the 

National Indigenous 

Innovation Product 

Accreditation Work for 

2010 

April 2010 Revises the November 2009 draft rules above, and softens key requirements. 

Appears to authorize procurement of indigenous innovation products that use 

IP licensed from foreign firms, rather than requiring that products use IP 

originally developed in China. Applicants for indigenous innovation product 

status must have exclusive rights to the product’s trademark or have the right 

to use the trademark in China, but the trademark no longer has to be first 

registered in China. Specifies that accredited products should focus on six 

high-technology sectors: computer equipment, telecommunication equipment, 

modern office equipment, software, new energy equipment, and energyefficient products. 

Sources: Brightbill and Fogarty, “New Indigenous Innovation Policies Foreclose Foreign Access,” February 2010; 

USCBC, “Issue Brief: New Developments in China’s Domestic Innovation and Procurement Policies,” January 2010; 

USCBC, “Qualification Criteria for China’s Circular 618,” 2010. 

“buy domestic” rule to their equipment purchases, particularly when government funds 

are used for the purchases.40

As illustrated in table 5.1, China’s government procurement measures remain in draft 

form. The most recent draft rules, released in April 2010, appear to include a shift from 

the November 2009 draft, which required that products accredited as indigenous 

 40 NFTC, China’s Promotion of the Renewable Electric Power Equipment Industry, March 2010, ii. 
5-11

 

innovation include original Chinese ownership of IP, with R&D conducted in China. 

Under the April 2010 draft, applicants for indigenous innovation product status must 

have exclusive Chinese rights to a product’s IP and trademark. Also, the IP developed by 

a foreign firm must be legally licensed from that firm, but is not required to be first 

registered in China.41 Given the draft status of the policies, the extent to which firms that 

are partially or wholly foreign owned will be able to access China’s government 

procurement market remains to be seen. More recently, both Chinese Premier Wen Jiabao 

and Vice President Xi Jinping, in separate, well-publicized speeches, assured foreign 

investors that government-funded procurement and construction projects will be open and 

transparent to both Chinese and foreign-invested enterprises (FIEs), and that foreign 

firms invested in China would be considered eligible for indigenous innovation 

accreditation.42 Several foreign firms operating in China have reported that the April 

2010 draft addressed a number of their concerns regarding China’s indigenous innovation 

policies, and, compared to the November 2009 draft, significantly improved their 

assessment of China’s government procurement market.43

However, even with the April 2010 modifications to the draft policies, some industry 

representatives remain concerned. Under the new draft, it appears that products must 

reflect indigenous innovation by complying with unspecified “national industrial and 

technology policies” and must be locally researched and developed, including licensing 

of IP usage rights in China, with the R&D led by a Chinese entity. This could exclude 

foreign-owned firms, joint ventures in which the foreign partner has a majority interest, 

and even Chinese firms with R&D centers outside of China,44 although some foreign 

firms may qualify. Since the accreditation process is not yet underway, it is difficult to 

know for sure how Chinese officials will interpret the accreditation process for products 

manufactured by foreign firms. Another requirement that has been seen as problematic is 

that products be free from “IPR disputes.” “IPR disputes” is a term that has not been 

defined in the draft regulations, and it raises the possibility that an unsubstantiated 

allegation raised by a third party, perhaps a competitor, could be used as a reason to 

exclude a foreign-made product from government procurement.45

Further, the development of an indigenous innovation product catalogue may run counter 

to pledges by the Chinese government to avoid protectionism, and counter to China’s 

own interest in developing a technology-based, 21st-century economy.46 U.S. and foreign 

industry groups have argued that the release of a catalogue that gives preferences in 

government procurement to specific products is likely to remove incentives for Chinese 

firms to engage in indigenous innovation of new products, and is also apt to promote 

41 Draft Notice Launching the National Indigenous Innovation Product Accreditation Work for 2010, 

issued jointly by MOST, NDRC, and MOF, April 2010; USCBC, “Issues Brief: China's Domestic Innovation 

and Procurement Policies,” May 2010; USCBC, “Issues Brief: New Developments in China's Domestic 

Innovation and Procurement Policies,” January 2010. 42 Xinhua News, “China’s Investment Environment Improving Amid ‘Growing Pains,’” September 9, 

2010; Xinhua News,” Full Text of Chinese Premier Wen Jiabao’s Speech at Summer Davos 2010,” 

September 13, 2010. 43 Industry officials, interviews by USITC staff, Beijing, September 8, and Shanghai, September 15, 2010. 44 North American and European Industry Groups, “Industry Comments on the Draft Notice,” May 10, 

2010. 45 Intellectual Property Owners Association, written submission to the Commission, July 9, 2010; North 

American and European Industry Groups, “Industry Comments on the Draft Notice,” May 10, 2010; USCBC, 

“The US-China Business Council Comments,” May 10, 2010. 46 USITC, hearing transcript, Washington, DC, June 15, 2010, 54 (testimony of Calman Cohen, 

Emergency Committee for American Trade, and of Christian Murck, American Chamber of Commerce in 

China). 
5-12

Chinese agencies’ purchase of outdated products, because newly introduced products and 

innovative products manufactured by foreign firms are less likely to be included in the 

catalogue. 47 U.S. government officials have also raised concerns regarding the 

implementation of the indigenous innovation product accreditation system.48 On May 10, 

2010, the Chinese authorities delayed implementation of the system to review these 

comments. As of September 2010, it appears that the Chinese government has decided to 

wait to release the catalogue as it considers comments from interested parties.49 

Provincial and Local Accreditation for Indigenous Innovation 

Products 

Even though there is no central government catalogue of indigenous innovation products 

as of September 2010, a number of provincial indigenous innovation catalogues are in 

effect. Some observers view these as “trial balloons” for the central government’s 

expected catalogue. Ten provincial and municipal governments have released 25 publicly 

available catalogues identifying indigenous innovation products since 2006. Eight 

additional provincial and municipal governments have formulated indigenous innovation 

catalogues that are not currently available publicly. The provincial catalogues list the 

preferred products for government agency and SOE procurement, although the precise 

regulations are not clear. 50 

There are almost no products made by foreign companies in these catalogues, a pattern 

that seemingly excludes foreign companies from provincial government procurement 

markets unless there is no Chinese-made alternative to a foreign product (box 5.1). For 

example, only two of the 523 products in Shanghai’s catalogue were made by FIEs, both 

of which have majority Chinese ownership; Jiangxi’s 475-product catalogue includes 

only one from an FIE; and Beijing’s government procurement catalogues include only 

one foreign product out of 56 listed.51 

Technical Standards and Indigenous Innovation 

As is the case with government procurement, Chinese-developed technical standards can 

be an important tool for the promotion of indigenous innovation. Two broad issues have 

drawn the attention of U.S. industries in this regard. First, U.S. industry sources assert 

that the Chinese approach aims to develop standards favoring domestic industries at the 

expense of internationally accepted foreign standards and technologies.52 The fear is that 

Chinese development of country-specific standards will impede market access and force 

companies to adopt Chinese technology and standards in order to conduct business in the 

Chinese market. 53 A second issue is the role of IP in standards. According to U.S.

 47 North American and European Industry Groups, “Industry Comments on the Draft Notice,” May 10, 

2010; USCBC, “The US-China Business Council Comments,” May 10, 2010. 48 See Locke, Statement to the Senate Committee on Finance, June 23, 2010. 49 North American and European Industry Groups, “Industry Comments on the Draft Notice,” May 10, 

2010; USITO, “Comments to the Ministry of Science and Technology (MOST), the National Development 

and Reform Commission (NDRC), and the Ministry of Finance (MOF) on the Notice on Launching the 

Accreditation of National Indigenous Innovation Products in 2010,” May 10, 2010; U.S. government official, 

interview by USITC staff, July 12, 2010. 50 USCBC, “Issues Brief: China’s Domestic Innovation and Procurement Policies,” May 2010. 51 Ibid. 

52 USTR, 2010 Report on Technical Barriers to Trade, March 2010, 50. 53 USITC, hearing transcript, June 15, 2010, 232 (testimony of Shaun Donnelly, National Association of 

Manufacturers). 
 

BOX 5.1 Replacing a Foreign Product With a Chinese Product 

According to U.S. industry representatives, “buy local” policies for Chinese hospitals have existed in some 

municipalities for several years, requiring hospitals to certify that there were no local suppliers of a desired product 

in order to buy foreign goods. Nonetheless, many Chinese hospitals have continued to buy highly regarded U.S. 

medical products, even though the procurement process has become more difficult. 

In December 2009, however, the Tenth People’s Hospital in Shanghai replaced an imported surgical navigation 

system with a locally developed one, the Excelim-04 system developed by Shanghai Fudan Digital Medical 

Technology Co. (a joint venture of Fudan University and Shanghai Business Investment Group). This may be one of 

the first products to reflect procurement specifically based on the local indigenous innovation product catalogue. 

(The imported product that was displaced by this procurement was not identified.) 

Sources: Industry representatives, interviews by USITC staff, July 9 and 12, 2010; Chen Mining, “Shanghai to Sign 

the First Purchase of Independent Innovation Products,” December 1, 2009; Shanghai Services Federation, 

“Excelim-04 Surgical Navigation Systems,” February 2, 2007.

industry sources, Chinese development of national technical standards is often motivated 

by the desire to reduce the amount of royalties paid to foreign companies for IP contained 

in standards. Additionally, U.S. industries are concerned about draft regulations covering 

the role of IP in standards in China, particularly the proposed requirements for disclosing 

patents and the terms for licensing patents in Chinese national standards. 

Compounding these problems is that, while China has made improvements in its 

standards-setting processes, procedures often tend to be nontransparent and exclude 

meaningful opportunities for foreign companies to provide input and comment. 54 In 

2009, the Standardization Administration of China (SAC) issued new public procedures 

for standards-setting technical committees confirming that legally registered foreign 

representatives could participate as voting members, though participation would be at the 

discretion of the technical committee chairs.55 These new, clarified rules were issued 

following a 2008 meeting of the U.S.-China Joint Commission on Commerce and Trade 

(JCCT). However, according to the Telecommunications Industry Association (TIA), 

China still has “uneven and unclear eligibility requirements” for participation of foreign 

companies, and has a tendency to mandate standards that are developed outside of 

international standards-setting processes.56 

The Chinese Approach to Standards 

Chinese government policies view technical standards as playing an important role in 

economic development. In contrast to the U.S. approach to standards, which is more 

decentralized and is led by the private sector with government support, China has a topdown approach: central government administration and various government ministries 

have mandates to decide which standards will be developed and the processes for their 

development. 57 Chinese standards are either mandatory or voluntary. Mandatory 

standards are technical regulations that have the force of law; all other standards are 

voluntary, and include both national standards that are uniform across China and 

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 54 Owen, “Standards in China: Behind the Headlines,” January–February 2010, 41; USTR, 2010 Report 

on Technical Barriers to Trade, 50; TIA, written submission to the USITC, July 7, 2010, 2. 55 Owen, “Standards in China: Behind the Headlines,” January–February 2010, 43. 56 TIA, written submission to the USITC, July 7, 2010, 2. 

57 Owen, “Standards in China,” 2010 1; USITC, hearing transcript, June 15, 2010, 235–36 (testimony of 

Mark Bohannon, Software & Information Industry Association). 
5-14

 

standards that are specific to particular industries and enterprises.58 Chinese standards 

also include the China Compulsory Certificate (CCC) program, a mandatory safety 

certification program covering 22 product categories and affecting over 20 percent of 

U.S. exports to China.59 

Chinese development plans have long recognized the importance of China’s becoming a 

standard setter as part of an innovation-based policy to develop domestic industries. 

Following its WTO accession in 2001, Chinese government ministries, led by the SAC,60

developed two strategic objectives for development of technical standards with specific 

timetables: 

 By 2010, Chinese standards would catch up to international levels, 

and the share of Chinese standards based on independent 

innovation would have risen. 

 By 2020, the share of Chinese technical standards that are based on 

its independent innovation would have increased further, and the 

share of international standards that are based on Chinese 

innovation would have also risen such that China would be a world 

leader in key fields.61 

China’s standards strategy recognized that turning national standards into international 

ones would improve the adaptability and competitiveness of Chinese standards and 

technology. The strategy also recognized the importance of standards as drivers of 

technology, innovation, and trade. 62 As noted earlier, the MLP advocated raising the

contribution of technological advances to China’s economic growth and limiting its 

dependence on imported technology.63 Additionally, the MLP highlighted support for 

development of Chinese-owned IP and the importance of incorporating this IP in national 

and international standards.64 

China-Specific Standards and the ICT Sector 

U.S. concerns with Chinese development of national standards in the context of 

indigenous innovation have particularly focused on the information and communication 

technology (ICT) sector, where China has been active in development and promotion of 

its national technical standards. 65 At the Commission’s hearing, the Information 

Technology Industry Council (ITIC) noted China’s propensity for mandating use of its 

own country-specific standards in instances where global ICT standards exist, and raised 

58 According to the American National Standards Institute (ANSI), 15 percent of Chinese national 

standards in 2006 were mandatory and the remainder were voluntary. ANSI, “PRC Standards System: 

Standards Used in China,” 2010. 59 Owen, “Standards in China,” 2010, 2. 

60 The SAC is a standards policy ministry under the General Administration of Quality Supervision, 

Inspection and Quarantine (AQSIQ), which administers the standards system in China. 61 Ping, YiYi, and Hill, Standardization Strategy of China, January 2010, 5. These goals emerged from 

two research projects initiated by the MOST during China’s 10th five-year plan (2001–05) and accepted by 

MOST in December 2005—“Study on the Strategy of China’s Technical Standards Development” and 

“Study on the Construction of a National System of Technical Standards.” According to Ping, YiYi, and Hill, 

the MOST research project was an important historical event in China. 62 This standards strategy was also viewed as contributing to a “harmonious” society. 

63 Cao, Suttmeier, and Simon, “China’s 15-year Science and Technology Plan,” December 2006, 39. 64 An, “Intellectual Property Rights in Information and Communications,” 2009, 185. 65 Winn, “ICT Standards and Indigenous Innovation in China,” October 7, 2009, 1. 
5-15

 

concerns about technology neutrality.66 Some industry representatives have argued that 

Chinese standards-setting bodies frequently take an existing standard and change the 

technology only slightly, just enough to add costs and make it more difficult for foreign 

manufacturers trying to sell their products in China. To the extent that Chinese-developed 

standards include indigenous IP, they also reduce the royalties that Chinese firms must 

pay to foreign firms whose technology often forms a critical component of the global 

standard, while increasing royalties foreign firms must pay to Chinese IP holders.67 

Promotion of Chinese Domestic Standards 

Two important examples of Chinese development and promotion of national standards in 

the ICT sector are the Wired Authentication and Privacy Infrastructure (WAPI) standard 

and Time Division Synchronous Code Division Multiple Access (TD-SCDMA), a thirdgeneration (3G) mobile telecommunications standard.68 Table 5.2 presents a timeline and 

comparison of the development of these standards. Both were developed as national 

standards with Chinese government assistance despite the existence of international 

standards. Both standards reduce the royalties that would otherwise accrue to U.S. firms 

and shift some royalties to Chinese firms, although one study has calculated that, in the 

case of TD-SCDMA, only 7 percent of the patented technology is held by China, with the 

remainder held by Nokia, Ericsson, Siemens, and other international companies.69

The WAPI standard, according to Chinese sources, was originally developed because of 

Chinese concerns about security in the Wi-Fi encryption protocol. However, WAPI’s use 

of an undisclosed encryption algorithm has hampered its acceptance by the International 

Organization for Standardization (ISO) as an international standard. The United States 

raised the issue of WAPI in both the WTO Technical Barriers to Trade (TBT) Committee 

and the JCCT in 2004, with the result that China decided not to make WAPI mandatory, 

but rather a priority standard for government procurement. In April 2009, the Ministry of 

Industry and Information Technology (MIIT) approved WAPI’s use in mobile phones, 

and shortly thereafter it approved phones enabled with both protocols (WAPI/Wi-Fi 

stack). Inclusion of WAPI technology adds costs for manufacturers, who must work with 

local companies to make the hardware as well as pay royalties for the Chinese 

technology.70 However, industry sources indicate that business opportunities related to 

Wi-Fi compliant hotspots are expected to expand in China as telecommunications 

66 USITC, hearing transcript, June 15, 2010, 208–10 (testimony of John Neuffer, Information Technology 

Industry Council). According to the International Telecommunications Union (ITU), a United Nations agency 

for information and communication technology issues, the concept of technology neutrality refers to 

regulating different technologies that offer essentially the same service in a similar manner. The purpose is to 

avoid providing an advantage to one technology over another in the market. See ITU, “The Concept of 

Technology Neutrality,” n.d. 67 Industry officials, interviews by USITC staff, July 7, 15, and 30, 2010. 68 Both WAPI and TD-SCDMA were discussed by industry officials at the USITC hearing. USITC, 

hearing transcript, June 15, 2010, 232 (testimony of Christian Murck, American Chamber of Commerce in 

China), and John Neuffer, ITIC, written testimony to the USITC, June 15, 2010, 4–5. Similarly, both 

standards were discussed in the context of indigenous innovation by McGregor, China’s Drive for 

“Indigenous Innovation,” July 2010, 28–30. 69 Yan, The 3G Standard Setting Policy, 2007, 2. 70 International Business Times, “China Braces for Wi-Fi Boom,” July 13, 2010. 
TABLE 5.2 Chinese approach to WAPI and TD-SCDMA standards

WAPI TD-SCDMA 

Type of standard 

Wireless local area network (WLAN) 

security standard 3G mobile standard 

Competing global standard IEEE 802.11i Wi-Fi wireless standard  WCDMA (Europe) 

 CDMA 2000 (U.S.) 

Motivation for Chinese 

standard 

 Encryption security issues 

 Royalty costs 

 Royalty costs 

 Improved competitiveness for Chinese

 companies in largest mobile market 

Promoters  IWNCOMM (Chinese software 

 company) 

 WAPI Alliance 

 Datang Telecomm 

 (subsidiary of China Academy of 

 Telecommunications Technology [CATT]) 

 Siemens 

 TD-SCDMA Industry Alliance 

Status as international 

standard 

 Rejected by ISO, 2006 

 Resubmitted to ISO, 2009 

 Accepted by ITU as international 

 standard, 2000 

U.S. industry concerns  Inconsistent with WTO/TBT 

 Agreement (mandated local 

 standard when international 

 standard exists) 

 Technology neutrality (regulating 

 technologies that offer the same service in a 

 similar manner) 

Promotion/mandate by 

China 

 Initiated by Chinese government, 

 2001 

 Mandated standard, 2003 

 Mandatory status suspended in 

 2004 following JCCT meeting 

 Government procurement 

 preference, 2005 

 WAPI approved in mobile 

 phones, April 2009 

 WAPI/Wi-Fi stack approved in 

 mobile phones, May 2009 

 Initiated by Chinese government, 1998 

 Approved as voluntary national standard, 

 2006 

 Licenses allocated to China Mobile, 

 2009 

 Export credits provided to ZTE for 

 European export sales 

 Subsidies for R&D and users of TD-

 SCDMA terminals 

Current status  Both WAPI and Wi-Fi hot spots and 

 equipment are expected to increase 

 in China as major 

 telecommunications companies 

 expand networks due to increased 

 mobile phone usage

 China Mobile currently expanding TD-

 SCDMA network infrastructure in China 

 Future plans to expand network in 

 foreign countries 

Sources: C114, “China Mobile to Subsidize TD-SCDMA Terminal Users,” June 23, 2010; An, “Intellectual Property 

Rights in Information and Communications Technology Standardization,” 2009; Zhan and Tan, “Standardisation and 

Innovation in China,” 2010; Interfaxchina.com, “MIIT Gives Green Light to WAPI Handsets,” April 2009; International 

Business Times, "China Braces for Wi-Fi Boom,” July 13, 2010. 

companies broaden their networks to accommodate increasing Wi-Fi use because of the 

recent MIIT approval of Wi-Fi compliant phones.71

Given that China has more mobile phone users than any other country in the world, its 

development of TD-SCDMA 3G technology was an important industry event. China’s 

State Council agreed to award 3G licenses for TD-SCDMA technology in January 2009 

to China Mobile, Ltd., the world’s largest mobile network in terms of subscribers.72 As 

China moves to allocate spectrum among the three competing 3G mobile standards, U.S. 

industry has raised concerns about technology neutrality.73 Industry sources also indicate 

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 71 International Business Times, “China Braces for Wi-Fi Boom,” July 13, 2010. The approval of Wi-Fi 

in mobile phones was reportedly due to the large number of Wi-Fi compliant gray market phones and 

existing base stations already in China prior to May 2009. 72 Cellular-News, “China Confirms 3G License Awards,” January 7, 2009, 1. 73 USITC, hearing transcript, June 15, 2010, 232 (testimony of Christian Murck, American Chamber of 

Commerce in China), 233. 
5-17

 

that China Mobile plans to further expand the use of TD-SCDMA technology by 

providing subsidies for users of TD-SCDMA terminals in 2010, developing an R&D 

fund, and linking cooperative agreements with nine mobile phone makers and three chip 

designers in China and abroad.74

ICT, Encryption, and CCC Standards 

U.S. industry representatives also have raised concerns about Chinese CCC regulations, 

implemented in May 2010, that cover 13 categories of commercially available ICT 

products in the context of indigenous innovation. These regulations require testing and 

certification to Chinese standards for information security functions when the covered 

ICT products are sold to Chinese government agencies.75 The rules will require sellers to 

provide China’s Certification and Accreditation Administration (CNCA) and the General 

Administration of Quality Supervision, Inspection, and Quarantine (AQSIQ) with 

complete details of the inner workings of computer products in these 13 product 

categories. According to Chinese sources, the regulations were issued for national 

security reasons.76 The CCC program for the 13 ICT products differs from the Common 

Criteria for Information Technology Security Evaluation (Common Criteria), an 

ISO/International Electrotechnical Commission (IEC) standard for computer security 

certification in which users specify their security requirements and testing laboratories 

evaluate vendor claims.77

Industry sources have noted that these rules will require companies to reveal encryption 

secrets to the Chinese government, with the result that global companies doing business 

with the Chinese government might lose business in third-country markets due to buyer 

concerns about the Chinese government having access to their encryption codes. 78

According to U.S. government sources, U.S. companies seeking to participate in the 

Chinese government procurement market may have to develop products specifically for 

the Chinese public sector, or lose out in the Chinese government market entirely.79 U.S., 

Japanese, and European protests about these regulations resulted in the Chinese 

government limiting the requirements to government procurement and delaying the 

implementation date to May 2010.80 

Future Competitiveness Issues Regarding Standards 

 

U.S. industry representatives have also raised concerns regarding indigenous innovation 

and China’s development of future standards in a number of sectors, including ICT and 

electricity generation. One issue is China’s strategy of developing closed, national 

74 C114, “China Mobile to Subsidize TD-SCDMA Terminal Users,” June 23, 2010. Companies involved 

with China Mobile in the TD-SCDMA network include Nokia, Motorola, ZTE, Huawei, and Samsung, 

among others. 75 USTR, 2010 Report on Technical Barriers to Trade, March 2010, 51; McGregor, China’s Drive for 

“Indigenous Innovation,” July 2010, 30. The products covered include smart cards, firewalls, routers, 

database systems, and other network and internet security systems. 76 Defense Tech, “China Demands Computer Encryption Codes from Cyber Security Firms,” May 3, 

2010. 77 See, for example, the comment by U.S. Trade Representative Ron Kirk that the CCC standards are 

inconsistent with international norms. USTR, “Statement from U.S. Trade Representative Ron Kirk and 

Japan Economy, Trade, and Industry Minister Toshihiro Nikai, May 2009. 78 McGlaun, “China Forces Foreign Firms Selling to Government to Provide Encryption Codes,” May 4, 

2010, 1; McGregor, China’s Drive for “Indigenous Innovation,” July 2010, 30. 79 USTR, 2010 Report on Technical Barriers to Trade, March 2010, 51. 80 China filed 13 TBT notifications to the WTO covering the selected products in August 2007. 
5-18

 

standards for trusted computing through Trusted Cryptography Modules (TCM), rather 

than through participation in the ISO and the Trusted Computing Group (TCG).81 The 

Chinese TCM requires that cryptographic algorithms and protocols used to perform 

specific security tasks, such as verifying that only authorized codes run on a system, be 

based on Chinese technology.82 U.S. industry representatives have raised concerns that 

Chinese development of TCM is motivated by the desire to reduce royalties for patents 

embedded in TCG technology standards and that it will negatively affect interoperability 

and globally integrated supply chains.83

A second area of concern in the ICT sector involves China’s plans for developing Time 

Division Long Term Evolution (TD-LTE), a fourth-generation mobile 

telecommunications technology based on the TD-SCDMA standard.84 Support for TDLTE is being led by the Chinese government, China Mobile, and Chinese manufacturers. 

According to industry sources, China Mobile is also testing TD-LTE in foreign markets 

and has plans to cooperate with foreign operators to develop TD-LTE trial networks. 

Additionally, 31 nations and regions have already announced plans for commercial 

deployment of TD-LTE.85

A third area of concern in the ICT sector is China’s recent enforcement of its Multi-level 

Protection Scheme (MLPS)—a set of rules for computer security certification that apply 

to government agencies, SOEs, and Chinese infrastructure companies, including financial 

and transportation institutions.86 Although the MLPS has been in place for three years, it 

has been reported recently that Chinese inspectors are starting to strengthen their 

enforcement of these rules. 87 The MLPS could significantly affect U.S. sales of 

information security technology products, such as network firewalls and digital identity 

systems in China.88 The MLPS classifies computer systems into five tiers of increasing 

sensitivity and requires that security technology for the top three tiers be supplied by a 

Chinese-owned company and that core technology and key components be based on 

Chinese IP.89 Foreign suppliers of products classified in level three and above will be 

allowed if there is no Chinese alternative; however, industry representatives have noted 

that domestic replacements could be developed by Chinese companies in the next 5–10 

years. 90 U.S. industry concerns regarding the MLPS include lack of transparency, its 

broad coverage, uncertainty as to how the program will be enforced, requirements to 

provide source codes, and the restrictions on foreign access.91 The MLPS also differs 

from the ISO/IEC Common Criteria in its requirements for computer security 

certification.92

81 The TCG is an international industry standards group. Wolff, Dempsey, and Oh, “Policy Issues Arising 

in China’s Development of State-Sponsored Domestic Standards,” September 2009, 1–2. 82 Wolff, Dempsey, and Oh, “Policy Issues Arising in China’s Development of State-Sponsored 

Domestic Standards,” September 2009, 4. 83 Ibid., 13. 

84 Industry representative, interview by USITC staff, Washington, DC, July 30, 2010. 85 C114, “China Mobile to Test TD-LTE Overseas,” June 4, 2010. 

86 Neuffer, written testimony to the USITC, June 15, 2010, 5. 87 McDonald, “China Braces for New Computer Security Battle,” August 27, 2010, 1. 88 Ibid., 2. Additionally, the MLPS could have adverse consequences for all China-based exporting firms 

to the extent the program raises prices in China. Ernst and Martin, The Common Criteria for Information 

Security Technology, January 2010, 8. 89 United States Council for International Business, “Comments to NIST: Re: USCIB Comments on 

Cybersecurity, Innovation, and the Internet Economy,” September 22, 2010, 5. 90 Industry representatives, interviews by USITC staff, Beijing, September 8, 2010. 91 Ibid. 

92 Ernst and Martin, The Common Criteria for Information Security Technology, January 2010, 4. 
5-19

 

Outside of the ICT sector, industry sources report that China’s State Grid, a state-owned 

company that controls electricity transmission in a majority of China’s provinces and 

regions, is setting standards as it moves into developing smart grid technologies.93 These 

sources expressed concern that the lack of public and transparent standards could pose a 

challenge to foreign companies interested in competing for the $60–$100 billion that 

China is expected to spend on smart grid upgrades in the future.94

Patented Technology and Standards 

The SAC’s release of the Proposed Regulations for the Administration of the 

Formulation and Revision of the Patent-Involving National Standards in 2009 raised 

concerns among U.S. industry representatives about Chinese indigenous innovation 

policies and rules for patented technology in standards. The SAC’s draft rules established 

three general principles: (1) mandatory national standards should not incorporate patented 

technologies as a general principle; (2) if a mandatory standard does involve a patent, the 

relevant government agency will negotiate license terms, and, failing to do that, could 

require compulsory licensing of relevant patents; and (3) patented technology relevant to 

national standards should not be included unless the patent holder agrees to grant a 

royalty-free license, or one that provides royalties at a price significantly lower than the 

norm. 95 USTR views this practice as in conflict with those followed by standardsdeveloping organizations in other countries, where reasonable and nondiscriminatory 

(RAND) licensing policies are incorporated into standards. 96 U.S. industry 

representatives have expressed concern that these draft rules followed instances in which 

the Supreme People’s Court of China offered guidance to lower courts suggesting that IP 

incorporated into a national standard need not be compensated at the market value.97

In January 2010, the China National Institute of Standardization (CNIS) issued and 

requested comments from all stakeholders on its Disposal Rules for Inclusion of Patents 

in National Standards (Disposal Rules), a key component of the SAC regulations. Based 

on feedback from U.S. and other foreign stakeholders, the Disposal Rules did not include 

a number of provisions that had been in the 2009 SAC Proposed Regulations, particularly 

those related to compulsory licensing in mandatory standards and to requirements that 

royalties be licensed on a lower-than-fair basis. 98 The Disposal Rules do, however, 

require the disclosure of pending as well as existing patents during the formulation and 

revision of national standards, which may prove onerous for holders of patent 

applications that have not yet been published.99 Standards observers have noted that, for 

the Disposal Rules to be better aligned with international standards and patent policies, 

they should further clarify rules for essential patents and claims in regard to patent 

disclosure and licensing, obligations regarding nonparticipants, and obligations regarding 

93 Wall Street Journal China Real Time Report, “State Grid Guns for China’s Smart Grid,” June 30, 2010. 

Energy technology and China’s standards approach, including the smart grid, were mentioned at the 

Commission’s hearing as areas to watch. USITC, hearing transcript, June 15, 2010, 283 (testimony of 

Jeremie Waterman, U.S. Chamber of Commerce). 94 Under the Energy Independence and Security Act of 2007, the National Institute of Standards and 

Technology (NIST) is currently coordinating development of standards and protocols for the U.S.-based 

smart-grid system. 95 USTR, 2010 Report on Technical Barriers to Trade, March 2010, 75; Freshfields Bruckhaus Deringer, 

“Patents and Standards-setting in China,” January 2010, 1. 96 USTR, 2010 Report on Technical Barriers to Trade, March 2010, 75. 97 USITC, hearing transcript, June 15, 2010, 238–39 (testimony of Jeremie Waterman, U.S. Chamber of 

Commerce). 98 Freshfields Bruckhaus Deringer LLP, “Patents and Standard-Setting in China,” March 2010, 2. 99 Ibid. 
5-20

the patent license declaration form.100 USTR has indicated that the United States will 

monitor these developments in the future.101

Competition Policy/Anti-Monopoly Law 

Another area that is seen as falling under China’s broad indigenous innovation policies is 

the enforcement of the recently enacted AML. U.S. businesses have raised three concerns 

in this area: (1) the conditions under which mergers and acquisitions (M&A) between 

foreign and Chinese firms will be approved by Chinese authorities; (2) the way Chinese 

authorities are likely to enforce the provisions of the law related to a company’s alleged 

abuse of a dominant market position; and (3) the apparent exception for enforcement 

related to SOEs under Article 7 of the AML. 102 All of these concerns are forwardlooking, i.e., they raise questions about actions that the Chinese government might take, 

rather than actions that have actually taken place as of September 2010. Moreover, the 

concerns largely focus on how Chinese government agencies and courts will implement 

and enforce the law, rather than on the AML’s actual provisions. 

 

Some observers have voiced concerns that foreign M&A of Chinese companies will be 

approved only under conditions that encourage or mandate technology transfer, or that 

M&A transactions involving foreign acquisitions of SOEs, famous Chinese brands, and 

state-controlled industries will not be approved.103 However, policy objectives do not 

appear to have played a substantial role in the first several merger approvals for which 

the Chinese Ministry of Commerce (MOFCOM) required antitrust remedies under the 

AML (through August 2010).104 Protection of famous Chinese brands may be another 

story. One prominent merger (Coca-Cola’s proposed takeover of Huiyuan Juice) was 

blocked by MOFCOM, and because the reasoning was not transparent, there has been 

speculation that the merger was denied to protect the Chinese juice company and its wellknown brand from takeover by a foreign company, rather than to preserve market 

competition.105

 

The AML provisions related to abuse of a dominant market position remain an evolving 

area of Chinese law that raises concerns among foreign firms.106 One concern is that the 

draft rules may establish a “refusal to deal” provision that presumes “illegality for routine 

transactions by dominant businesses.”107 Foreign firms that hold large market shares in 

several high-tech industries in China are concerned that the regulations may limit their 

 100 Willingmyre, “China’s Latest Draft Disposal Rules for Patents in Standards,” April 1, 2010. 101 USTR, 2010 Report on Technical Barriers to Trade, March 2010, 75. 102 USITC, hearing transcript, Washington, DC, June 15, 2010, 246–47 (testimony of Jeremie Waterman, 

U.S. Chamber of Commerce). 103 AmCham-China, 2010 White Paper, 2010, 56. 104 Zhang, “An Anti-Monopoly Legal Regime in the Making,” 2010, 1469–94. The article was published 

after only the third MOFCOM merger review. As of September 2010, MOFCOM has approved seven 

mergers for which antitrust remedies were required, all involving foreign companies, but there is no evidence 

that technology transfer objectives played a role in the later decisions either. 105 Zhang, “An Anti-Monopoly Legal Regime in the Making,” 2010, 1469–94; Coca-Cola Company, 

“Acquisition of Huiyuan Juice Group in China Not to Proceed,” March 18, 2009. 106 The State Administration of Industry and Commerce (SAIC) released a second draft of the relevant 

regulations in May 2010; as of September 2010, final regulations have not been released and there has been 

no enforcement activity by Chinese agencies. SAIC, Regulations on the Prohibition of the Abuse of 

Dominant Market Positions by Industrial and Commercial Administration Authorities (Draft for Comments), 

released May 25, 2010. Unofficial translation. 107 Singham, statement to the U.S. House Judiciary Subcommittee on Competition and the Courts, 

July 13, 2010; industry officials, interviews by USITC staff, July 15, 2010. 
5-21

ability to refuse to enter into unreasonable business transactions with competitors unless 

they first prove to Chinese regulators that such refusals would not have anticompetitive 

effects. Such regulatory interpretations might endow China’s anticompetition 

enforcement agency (SAIC) with wide-ranging powers to manage competition in a way 

that would benefit Chinese competitors of foreign companies.108 It may also be possible 

for the Chinese government to impose compulsory licensing requirements, which would 

allow access to a company’s IP in the context of an abuse of dominance antitrust remedy, 

based on provisions of the Patent Law that to date have not been enforced.109

An additional area of concern is what appears to be a potential exception to the 

anticompetition rules for “industries that are controlled by the state-owned economy and 

that are critical to the well-being of the national economy and national security and of 

sectors involving state-sanctioned exclusive monopolies.”110 This provision of the AML 

appears to provide some scope for China to give preference to particular SOEs, in line 

with the national goal of promoting “national champion” companies or infant industries. 

In particular, mergers between companies controlled by the State Assets Supervision and 

Administration Commission (SASAC) 111 have received exemptions from premerger 

reviews for anticompetitive effects—treatment which appears to encourage mergers 

between Chinese companies that will lead to the creation of new companies with 

significant market power. The language of the law reportedly is ambiguous, and much of 

the practical effect of the apparent exception for SOEs will depend on China’s 

implementation of the law in coming years.112

Favorable Tax Rates for High-Technology Enterprises 

Another Chinese government policy for promoting indigenous innovation is the 

substantial tax break accorded to high- and new-technology enterprises (HNTEs) under 

the Enterprise Income Tax Law, passed in January 2008. Under the law, Chinese 

enterprises designated as HNTEs pay income tax at a rate of 15 percent rather than the 

general corporate tax rate of 25 percent. Under Circular 172 (April 2008), an entity can 

qualify for the lower tax rate only if it “conducts continuous R&D activities” in China. 

Such enterprises need Chinese IP ownership to qualify; location and employment of 

Chinese staff is not sufficient.113

According to the Guidebook on Managing Certification of High- and New-Technology 

Enterprises, released jointly by MOST, MOF, and the State Administration of Taxation 

(SAT) in July 2009, companies qualify for this special tax rate by applying through their 

 108 For example, a foreign company could be forced to permit competitors to access prized assets such as 

supply chains. Singham, statement to the U.S. House Judiciary Subcommittee on Competition and the Courts, 

July 13, 2010; industry official, interview by USITC staff, July 7, 2010. 109 Singham, statement to the U.S. House Judiciary Subcommittee on Competition and the Courts, 

July 13, 2010; industry officials, interviews by USITC staff, July 7 and 15, 2010. 110 Bush, “The PRC Antimonopoly Law,” October 2007, 5. 111 SASAC performs investor’s responsibilities, supervises and manages the state-owned assets of the 

enterprises under the supervision of the Central Government (excluding financial enterprises), and enhances 

the management of the state-owned assets. SASAC Web site, “Main Functions and Responsibilities of 

SASAC.” 112 Singham, statement to the U.S. House Judiciary Subcommittee on Competition and the Courts, 

July 13, 2010; USITC, hearing transcript, Washington, DC, June 15, 2010, 247–48 (testimony of Jeremie 

Waterman, U.S. Chamber of Commerce); industry officials, interviews by USITC staff, July 7 and 15, 2010. 113 AmCham-China, 2010 White Paper, 218; McGregor, China’s Drive for “Indigenous Innovation,” 

July 2010, 19. 
5-22

provincial science and technology committee, which evaluates enterprises according to 

four criteria: 

 Core IP,114

 Technology commercialization ability, 

 R&D organizational management level, and 

 Enterprise growth rate.115

If an enterprise scores more than 70 points out of a possible total of 100, as determined 

by a panel of local technical and scientific experts, a public notice is posted. If no 

objections are raised, the enterprise is awarded HNTE status, which is filed with MOST 

in Beijing. 116 In practice, qualification criteria for the designation reportedly vary by 

province. According to anecdotal accounts, foreign companies have successfully applied 

for the special tax status in a number of provinces, but more precise information is not 

available.117 There are also reports that not all Chinese companies that have achieved the 

HNTE designation actually meet the criteria, with one anonymous MOST official 

reportedly claiming that “at least 50 percent of the companies that have already received 

high-tech certification are not truly qualified. They were certified under falsified 

materials.”118 The implementation of the tax status has also spawned a cottage industry of 

firms that help existing companies to qualify.119 

Other Indigenous Innovation Incentives for Chinese Firms 

In December 2009, several Chinese ministries jointly issued a catalogue of industrial 

equipment products that domestic companies are urged to develop. The catalogue offers 

Chinese manufacturers tax and financing incentives to focus on those products, and gives 

manufacturers of listed equipment priority in accrediting their products as national 

indigenous innovation products. Domestic companies developing these products are also 

eligible for preferential financing for product commercialization and possible R&D 

subsidies. The reference to indigenous innovation products raises concerns as to whether 

foreign companies’ products are eligible for these programs. The announcement is quite 

recent, so as with other policies related to indigenous innovation, foreign interests 

reportedly will continue watching to see whether the program is implemented in a way 

that excludes foreign products.120

Central and provincial government funding for R&D performed by Chinese firms, 

particularly SOEs in strategic areas identified by the MLP, reportedly also favors Chinese 

 114 Core IP is defined in SAT regulations as “inventions, utility models, designs for non-simple 

alterations to product patterns and shapes, software copyrights, exclusive rights to integrated circuit designs, 

and new plant varieties. . . . An exclusive license refers to a global technology licensee enjoying exclusive 

usage rights for at least five years for the agreed and determined IP . . . ; within this period the technology 

provider and any third party are prohibited from using that technology. Core IP designated by HNTEs must 

be registered in China, or must enjoy at least five years of global exclusive licensing rights.” 115 USCBC, “Qualification Criteria for China’s High- and New-Technology Enterprise (HNTE) Status,” 

2010. 116 Ibid. 117 Industry officials, interview by USITC staff, Washington, DC, July 26, 2010. 118 Zhou and Yang, “Caing Report,” August 10, 2010. 119 Ibid. 120 The catalogue of industrial equipment products targeted for domestic companies to develop was 

jointly issued by MOST, MOF, MIIT, and SASAC in December 2009. USCBC, “Issue Brief: New 

Developments in China's Domestic Innovation and Procurement Policies,” January 2010, 4. 
5-23

firms. According to AmCham-China, for example, Chinese telecommunications firms 

have essentially entered “zero bids” for major contracts, once government subsidies are 

accounted for, greatly reducing the competitiveness of foreign firms.121 

Opting Out of China Is Not an Option for Many U.S. Firms 

As discussed in this report, U.S. industry representatives have voiced serious concerns 

about the potential effects of China’s indigenous innovation policies on their market 

prospects in China, their ability to safeguard their IP while doing business in China, and 

their future in China even after making significant investments there. Even so, these 

industry voices uniformly agree that their companies have no choice but to remain active 

in the Chinese market and work with the policies promulgated by the Chinese 

government, for several reasons. First, China is the world’s largest and fastest-growing 

market, making it critical for global companies to remain active there. Second, U.S. 

industry representatives believe that even if they were to refrain from operating in China, 

their global competitors would fill the gap, leading to both large revenue losses and the 

likelihood that Chinese companies would be able to access similar IP elsewhere. Finally, 

in some industries, technology advances so quickly that by the time foreign companies in 

China are competing against technology stolen from them, they expect to be ready with a 

new generation of technology, so the stolen IP is no longer a critical competitive 

factor.122 In any event, because U.S. and other foreign firms are certainly profiting from 

their ongoing participation in the Chinese market, their shorter-term interest in 

maximizing current profits may encourage them to set aside their longer-term concerns 

regarding IP infringement and market access. Thus, U.S. companies expect to continue 

operating in China for the foreseeable future, despite their serious concerns about the 

direction of Chinese government policies regarding intellectual property and indigenous 

innovation. 

 121 AmCham-China, 2010 White Paper, 218. 122 USITC, hearing transcript, Washington, DC, June 15, 2010, 251–53 (testimony of Christian Murck, 

American Chamber of Commerce in China; Shaun Donnelly, National Association of Manufacturers; Jeremie 

Waterman, U.S. Chamber of Commerce); industry officials, interviews by USITC staff, May 12, June 2, July 

2, 7, 15, and 22, 2010. 

6-1

CHAPTER 6 

Frameworks for Assessing the Quantitative 

Effects of IPR Infringement and Indigenous 

Innovation Policies in China on the U.S. 

Economy 

In the request for this investigation, the Commission was asked to “outline analytical 

frameworks for determining the quantitative effects of the infringement and indigenous 

innovation policies on the U.S. economy as a whole and on sectors of the U.S. economy, 

including lost U.S. jobs.” 1

 These frameworks will be employed in the Commission’s 

follow-up investigation, China: Effects of Intellectual Property Infringement and 

Indigenous Innovation Policies on the U.S. Economy (hereinafter inv. no. 332-519), 

which was initiated under the same request. This chapter presents a series of strategies, 

including econometric methods, simulation methods, and survey methods, for quantifying 

such effects. 

A quantitative analysis of IPR infringement begins with the question of the economic 

effects of strong IP protections; if strong IP protections have observable positive 

economic effects, IPR infringement would at least partially reverse those effects. The 

improvement of IP protection in China could benefit the Chinese economy as well as 

have potentially significant positive effects on the U.S. economy. Strong IP protections 

reward innovative firms, whereas weak or limited protections inhibit innovation. Where 

innovation rewards are higher, firms are likely to invest more in research and 

development (R&D) and related activities. Such investments by U.S. firms have made 

substantial contributions to U.S. productivity growth, and in turn to U.S. economic 

growth.2

 For example, the social rate of return on R&D in the G-7 economies has been 

estimated to be approximately 120 percent, with substantial spillover benefits for 

productivity and growth in countries other than those in which the R&D was originally 

undertaken.3

 Thus, the conditions under which innovation is rewarded have economic 

effects that go well beyond rewarding individual innovators, or even to the country in 

which the innovation originates, extending also to other entities and economies. 

Similarly, the potential effects of IPR infringement also extend beyond the initial 

transaction. By lowering the rewards for innovation, infringement can discourage 

investment in R&D and related activities, lowering the rate of innovation and, in turn, 

productivity growth and economic growth. Thus, the negative economic consequences of 

infringement could be significant even if the purchasers of infringing products derive a 

short-term benefit in terms of lower prices. 

 1

 See request letter, app. A. 

2

 Pham, “The Impact of Innovation and the Role of Intellectual Property Rights,” 2010. 3

 Coe, Helpman, and Hoffmaister, “North-South R&D Spillovers,” 1997. 
6-2

Strategies for Quantification 

There is an extensive econometric literature showing that countries with stronger IPR 

regimes engage in a higher level of international transactions, both with the United States 

and with other countries. This literature, reviewed later in this chapter, shows that 

countries with stronger IPR regimes pay more license and royalty fees to the United 

States, receive more foreign direct investment (FDI) from the United States, and, in some 

cases, import more patent-intensive goods from the United States; the literature relates 

foreign IPR policies to other variables of interest as well. To a great extent, this literature 

takes as a starting point that much of the international effects of IPR infringement is 

mediated through multinational companies (MNCs), which helps to provide a unifying 

framework. As a first step, the Commission will use the results of this literature to derive 

implications for U.S. international transactions with China under a scenario in which 

China’s IPR regime becomes stronger. This could be done by comparing the current level 

of U.S.-China transactions with the level that would be expected if China improved its 

IPR policies. 

The Commission may also need to produce new econometric estimates of the relationship 

between foreign IPR regimes and U.S. international transactions because comparing 

China’s IPR policies with those of other countries presents special challenges. Most of 

the literature uses IPR policy indices to compare countries’ IPR regimes. In some 

instances, China’s IPR policies appear relatively strong when using indices based on the 

Chinese IPR laws as written. Alternatively, China’s IPR policies may appear relatively 

weak when indices more heavily weighted toward enforcement are used. Moreover, 

China’s national IPR policies have recently changed, and their implementation continues 

to evolve. The fact that China is very large, relatively poor, and very rapidly growing also 

makes it challenging to identify economies that are close comparators. 

Next, the Commission will examine the estimates generated in the first round for internal 

consistency in order to produce a usable set of estimates of first-round impacts. The 

variation in methods between different available studies implies that they are likely to 

give rise to a range of estimates for the effects of China’s IPR infringement on variables 

affecting the U.S. economy, such as exports, FDI, and license and royalty fees. Moreover, 

these variables have particular relationships with each other that must be considered. As 

discussed later in the chapter, activities of U.S. parent companies are likely to be 

positively associated with activities in their foreign affiliates. For example, if stronger 

IPR protection encourages more FDI in China, so that affiliates of U.S. MNCs in China 

employ more people and engage in more R&D, employment and R&D in U.S. parents 

are also likely to expand.4

 Changes in R&D spending will be used to infer changes in 

productivity. 

To the extent feasible, the Commission will identify further impacts of China’s IPR 

regimes on the U.S. economy using simulation methods, in particular computable general 

equilibrium (CGE) modeling. The estimates of first-round impacts of IPR infringement 

for such variables as U.S. exports, productivity, and investment will be used as inputs 

into the model to infer second-round effects on particular industries and sectors, 

including impacts on employment, as well as on economy-wide variables such as income 

and wages. Because of the particular challenges involved in modeling changes in the rate 

of economic growth in a CGE framework, the Commission’s simulation estimates will 

 4

 See the discussion below, “Effects in the U.S. Market,” for citations to relevant studies. 
6-3

likely focus on static or one-time impacts on particular sectors. While the Commission 

recognizes that the relationship between IPR protection and economic growth is 

potentially significant, an explicit estimate of the impact of infringement in China on U.S. 

GDP growth rates is not contemplated at present. The dynamic issues involved in 

analyzing growth rates would add additional complexity to an already complex analytical 

question. 

The survey of companies being conducted by the Commission for inv. no. 332-519 is 

independent of the modeling exercise, providing a complementary assessment of the 

effects of China’s IPR policies on the U.S. economy as self-reported by firms potentially 

affected by such policies. Moreover, estimates from the survey may also be used as 

inputs into the Commission’s simulation modeling, complementary to those inputs 

generated by econometrics. The Commission’s decision on whether to use survey results 

as an input into other quantitative exercises will take into account such factors as the 

degree to which firms choose to participate in the survey, the internal consistency of the 

questionnaire results, and the possibility that self-reported effects may systematically 

differ from those generated by other methods. 

Estimates of the impact of China’s indigenous innovation policies on the U.S. economy 

are even more challenging. As chapter 5 points out, such policies are complex and rapidly 

evolving. Many of the effects of indigenous innovation policies are expected to be 

observed only in the future. Furthermore, the economic principles linking such policies to 

outcomes for U.S. firms and the U.S. economy are not as well understood as the 

corresponding principles for infringement. Therefore, much of the analysis of indigenous 

innovation 332 is likely to be qualitative, deepening and updating the analysis in the 

current report. However, the Commission will undertake an econometric investigation of 

the import behavior of China’s state-owned enterprises (SOEs) with respect to the goods 

most likely to be affected by indigenous innovation policies. Because it has been 

suggested that such policies apply to the procurement behavior of SOEs, and that such 

behavior may already show preferences for Chinese-made goods, such an analysis may 

provide at least partial insight into the implications of indigenous innovation policies for 

U.S. exports of innovative goods to China. 

This second investigation will involve the Commission in novel areas of research. Details 

are likely to evolve as Commission staff confronts new issues arising in the course of the 

analysis. Also, the use of multiple methods—the survey, econometric analysis, and 

simulation analysis—creates the possibility of differing estimates of the same effects, 

subject to varying degrees of confidence and credibility. In research of this type, which 

involves both complex policies and illegal activity, this is to be expected. The use of 

several methods, both for cross-checking and to potentially inform each other, is a 

strength of the proposed approach, not a limitation. In addition, wherever feasible the 

Commission will conduct sensitivity analysis to provide a range of estimates in order to 

reflect the inherent uncertainties involving quantification of this type, and will present 

appropriate caveats to indicate any remaining unknown factors that may escape formal 

quantification. The Commission may also present more basic analyses of trends in U.S.-

China economic transactions, not involving econometrics, as a further cross-check. It is 

hoped that the results of this research will prove to have applications beyond the present 

study. 
6-4

 

Considerations Involving Surveys 

Targeting the Right Firms and Sectors 

All industries and sectors of the U.S. economy are exposed to IPR and technology issues 

to some degree. However, the degree of involvement varies widely from sector to sector 

and from firm to firm. A survey that recognizes and exploits these differences is more 

likely to generate useful information than a purely random survey of U.S. companies. 

This principle has been recognized in other studies that attempt to assess the 

contributions of IP to the U.S. economy as a whole. For example, one study focuses on 

“convergence industries” (industries that create, manipulate, and distribute information in 

a digital format), other industries that are patent-intensive, and non-dedicated support 

industries involved in transport and distribution of IP-intensive products. 5

The Commission has used a broad range of criteria to identify relevant industry sectors to 

survey, including quantitative technology indicators such as R&D, license fees and 

royalties, patenting, FDI in China, and Customs seizures, as well as qualitative indicators 

such as expressions of concern over China IPR issues raised by particular industries in 

other reports and studies. It should be recognized that different indicators may be 

appropriate for firms exposed to different kinds of IP. Within each sector, a special effort 

has been made to sample firms with a particularly high likelihood of experiencing effects 

from infringement and/or indigenous innovation—for example, the largest firms in each 

sector, firms with FDI in China, and firms with globally valuable trademarks. 

Nonresponse and Self-Reporting 

In any survey, some recipients are likely not to respond, either to the survey as a whole or 

to individual questions in the survey. Careful selection of the firms receiving the survey, 

as discussed above, may improve the response rate. If nonresponse shows systematic 

patterns, the Commission will use standard statistical techniques to address such patterns. 

The Commission has received some indications that firms may be particularly reluctant to 

provide information about infringement and indigenous innovation, either because they 

themselves cannot easily assess the effects of infringement and indigenous innovation or 

because such information is considered highly sensitive. In addition, firms wishing to 

highlight the importance of China IPR issues may have an incentive to self-report large 

values for monetary effects, which are not easily corroborated by other forms of analysis. 

The reliability of information generated from the survey will be assessed using both the 

qualitative information developed in this report and the subsequent report, as well as 

information developed using econometric techniques or other statistical analyses. 

Considerations Involved in Econometric Work 

The Commission will use a variety of indicators in its econometric work in order to 

capture the strength of the current Chinese IPR regime. Existing econometric literature is 

being examined for insight into methods for estimating the effects on the U.S. economy 

of improved IPR in China. Any new econometric work done by the Commission will pay 

close attention to the joint relationship between exporting, FDI, and license fees and 

royalties, both in the activities of U.S. MNCs and in transactions not involving MNCs. 

5

 Siwek, “Engines of Growth,” 2005. 
6-5

An important component of any econometric or statistical analysis will be to identify an 

indicator of the strength of China’s IPR regime relative to other countries. In the widely 

used Park indices, China’s formal IPR regime ranked fairly high in 2005, with a score of 

4.05 out of a best-possible 5, as compared to a score of 4.88 for the United States. 6

However, this index reflects primarily the observable features of written IPR law, rather 

than the enforcement regime. China’s IPR enforcement is considered to be weaker than 

that presupposed by its written policies, as discussed in chapter 1. Also, the index does 

not reflect China’s new Patent Law, which includes some potentially troublesome 

provisions in areas such as compulsory licensing. Another strand of literature attempts to 

quantify the average effect of a “major patent reform” on a before-and-after basis.7

 In this 

connection, the question arises whether the difference between China’s current IPR 

regime and international best practices would amount to something more, or less, than the 

“major patent reform” in an average country.8

 

Considerations Involved in Simulation 

The Commission has frequently made use of simulation methods, both partial equilibrium 

and general equilibrium, in its assessments of trade issues. The use of such methods has 

been rarely, if ever, applied to IPR questions. The use of simulation methods, particularly 

general equilibrium, potentially has certain desirable features. First, simulation methods 

can be used to identify economy-wide implications of effects that have been estimated 

using either the survey or econometric methods. Second, simulation methods will be 

useful in identifying impacts on jobs, which arise from the effects of IPR on other 

variables; in particular, such methods will be helpful in identifying employment that may 

be displaced between IPR-intensive sectors and the rest of the economy. Given the 

number of new issues involved in applying simulation to IPR questions, the Commission 

is focusing on applications of well-vetted methods used in previous studies, and in 

particular will emphasize methods that focus on shifting of resources between sectors and 

industries, i.e. comparative static methods. 

How IPR Infringement and Indigenous Innovation 

Policies Can Affect the U.S. Economy 

By Type of IP or Issue Area 

As shown in chapters 3 and 4, the types of IP protected by governments can take many 

forms. Patents and trade secret protection, copyright protection, and trademark protection 

are the most commonly used classifications. However, policies aimed at developing 

domestic innovation, and favoring the growth of domestic firms in certain sectors 

associated with innovation—in China’s case, the indigenous innovation policies 

 6

 Park, “International Patent Protection: 1960–2005,” 2008. 7

 Branstetter, Fisman, and Foley, “Do Stronger Intellectual Property Rights Increase International 

Technology Transfer?” 2006; Branstetter et al., “Intelllectual Property Rights, Imitation, and Foreign Direct 

Investment,” 2007. 8

 Professor Foley, one of the authors engaged in analysis using the concept of a “major patent reform,” 

opined in testimony to the Commission that the economic effects of moving from China’s current IPR regime 

to international best practice might be less than the effects associated with a typical “major patent reform” in 

his studies. USITC, hearing transcript, June 15, 2010, 174 (testimony of C. Fritz Foley, Harvard Business 

School). 
6-6

 

described in chapter 5—also can be considered in this context. The following discussion 

(unlike that in earlier chapters) focuses on economic rationales for IP policies. 

Patents and Trade Secrets 

The patent system has long been a principal means by which the United States and other 

industrial countries have sought to encourage and reward innovation. The temporary 

exclusive rights held by patent holders enhance the ability of firms to deter imitators, 

collect royalties, gain market lead times over competitors, and otherwise obtain economic 

benefits from the firm’s innovation and knowledge. The presence of such benefits 

presumably means that a stronger patent system provides greater incentives for firms to 

engage in R&D, leading in turn to accelerated productivity growth and the development 

of new products. However, the extent to which patents are effective means for firms to 

reap the returns from their knowledge and innovations varies widely from industry to 

industry. For example, executives in the pharmaceutical and chemical industries have 

consistently rated patents as relatively more important than do firms in other sectors. 9

In certain cases, firms prefer to use methods other than patents to preserve IP. Patenting a 

product or process requires disclosure of the underlying technology to the public and thus 

to competitors, so firms may prefer to safeguard their advances using trade secrets, using 

their own internal measures to protect information valuable to their market position. 

Similarly, in rapidly evolving areas of technology, the time required to apply for and 

obtain a patent may be long relative to the time it takes to develop a new generation of 

technology. In these situations, firms may try to preserve their IP primarily by 

maintaining lead time over competitors in the introduction of new products and 

processes.10 

Copyrights 

Copyrights provide protection for the producers of creative works analogous to those 

provided by patents. Copyrights are temporary legal monopolies granted to create 

incentives for artistic works which, without such a monopoly, might be copied very 

cheaply. Under perfect competition, the market price of such works of art could fall to the 

marginal cost of reproducing them, which is virtually zero for things that can be 

reproduced electronically. Copyrights are generally granted for a longer period of time 

than patents.11

One area in which copyrights are likely to have important measurable economic effects is 

that of software, which in the United States can be both copyrighted and patented.12 Since 

software represents a significant part of costs for business, and can be copied very 

cheaply relative to its retail price, firms that use pirated software may obtain substantial 

competitive advantages and lower their cost structure. In the United States, private fixed 

investment in software in 2009 amounted to $242 billion, accounting for over 17 percent 

of all nonresidential private fixed investment and substantially outstripping investments 

in industrial equipment, which amount to $150 billion. 13 Cost advantages gained by 

9

 Levin et al., “Appropriating the Returns from Industrial Research and Development,” 1987; Granstrand, 

The Economics and Management of Intellectual Property, 1999. 10 Industry official, interview by USITC staff, July 7, 2010. 

11 See chapter 1 for comparative information on the duration of copyrights, patents, and trade marks in 

China and the United States. 12 Scotchmer, Innovation and Incentives, 2004, 75, 129–30. 13 Department of Commerce data and USITC staff calculations. 
6-7

 

software piracy thus may significantly improve the performance of Chinese firms 

engaging in such piracy.14

Trademarks 

Trademarks serve a variety of functions including helping consumers identify and 

purchase a product based on its source or quality, eliminating confusion in the 

marketplace, and protecting a trademark owner’s investment in its reputation or consumer 

goodwill.15 Trademark counterfeiting generally involves the unauthorized imitation of a 

brand name or logo. Consumers may either unwittingly buy counterfeit products 

believing they are the true article, or deliberately buy counterfeit products because they 

are priced lower. In either case, sales are diverted from the producers of trademarked 

items to the counterfeiter. 

In addition, consumers associate trademarks with a certain level of quality, allowing the 

trademark holder to build brand loyalty and charge higher prices. Consumers who 

purchase a counterfeit product unwittingly and expect higher quality than they receive, 

may mistakenly attribute the poor quality to the legitimate trademark holder, thus 

harming the brand’s reputation. Some trademarked goods are also innovative (e.g., 

consumer electronic goods and high-end athletic shoes). Thus, counterfeiting of the 

trademark also erodes the return to IP embodied in the innovative product and protected 

by patents and/or trade secrets. There may also be potential health and safety risks 

associated with the purchase and use of counterfeit goods, ranging from shoddy 

manufacturing to ineffectual or even dangerous drugs.16

Indigenous Innovation 

As indicated in chapter 5, China’s indigenous innovation policies take a wide variety of 

forms, from general efforts to enhance the technological capacities of China’s firms in 

certain sectors to specific provisions aimed at granting preferences to producers of certain 

enumerated “innovative” products by Chinese domestic firms in possession of Chinesegenerated IP. Although the term “indigenous innovation” covers a wide variety of 

policies, the general thrust of such policies appears to be to enhance the performance of 

Chinese firms in specific industries, in particular increasing their growth and market 

share relative to foreign firms. 

To the extent that China’s policies succeed in accelerating technological progress, 

productivity, and innovation in the Chinese economy, they could provide spillover 

benefits for other countries. But if indigenous innovation policies act as a form of 

technological import substitution, systematically favoring Chinese domestic firms over 

foreign firms in relevant industries, they would be expected to have a negative effect on 

foreign firms and economies roughly analogous to what would occur if China simply 

imposed a protective tariff on imports of goods in the relevant sectors or levied a 

discriminatory excise tax on the sales of FIEs in the Chinese market. 

14 USITC, hearing transcript, June 15, 2010, 206 (testimony of Robert Holleyman, Business Software 

Alliance). 15 Horan, Johnson, and Sykes, “Foreign Infringement of Intellectual Property Rights,” 2005, 28. 16 See chapter 3, trademark counterfeiting. 
6-8

 

By Market Channel 

IPR violations in China affect the U.S. economy through several channels. First, they 

limit access to the Chinese market by U.S. firms, whether they are producing goods 

locally in China or exporting to China. Second, they harm sales by U.S. firms in their 

home market when, for example, counterfeit goods enter the U.S. market and unfairly 

take market share. And third, they similarly interfere with U.S. firms’ market in third 

countries. 

Effects in China’s Market 

How China’s IPR infringement influences the Chinese market depends on the behavior of 

MNCs in China. As in any country, MNCs engage in China’s market in different ways. 

These include, but are not limited to, exporting goods, either directly or to foreign 

affiliates in China; selling goods in China that are produced by foreign affiliates in China; 

and through licensing and royalty fee contracts for the purpose of transferring technology 

or other IP to affiliates and non-affiliates in China. 

Effects mediated through MNCs 

Exports, FDI, and licensing are interrelated, 17 and to some extent represent alternate 

methods of serving the same market. When viewed in this way, weak IP protection is 

likely to have the strongest negative effect on income from licensing and royalty fees, 

because the contracts under which such payments are made require recognition and 

enforcement of IPR. By contrast, U.S. merchandise exports may not be as affected by IP 

protection in other countries. For example, in cases where production of the goods 

involves trade secrets, the fact that such trade secrets can be safeguarded at U.S. 

production facilities may mean that exports of those goods are less influenced by IP 

protection in other countries. 

The situation of FDI, or affiliate sales associated with FDI, falls midway between that of 

exports and that of licensing fees and royalties. FDI may be not quite as sensitive to IP 

policies as license fees and royalties, but may be more sensitive to such policies than are 

exports. A priori, one would expect FDI to be less strongly associated with IPR 

infringement than license fees and royalties, but more strongly associated than exports. 

This is because IPR infringement affects both location decisions of firms (where to 

conduct business or serve markets from) and internalization decisions (whether to exploit 

knowledge within the boundaries of the firm or through the marketplace by licensing or 

using a joint venture partner). Stronger IP protection in foreign countries (especially for 

locally developed IP) may make MNCs more willing to locate IP-intensive activities 

abroad, favoring both FDI and licensing and disfavoring exports. On the other hand, 

stronger IP protection also makes it more likely that firms will be willing to exploit 

technology by selling it to parties outside the firm, favoring licensing at the expense of 

FDI. Thus, strengthening IP protection in a particular country could, in principle, either 

increase or decrease U.S. FDI to that country. 

These possibilities can be considered in reverse in the case of weak IP protection. 

Measures taken to preserve secrecy or to compartmentalize information in a foreign 

affiliate may serve to some extent to counteract weak IP protection in the country in 

17 See Smith, “How Do Foreign Patent Rights Affect U.S. Exports, Affiliate Sales, and Licenses?” 2001, 

and the sources cited therein, for a helpful discussion. 
6-9

 

which the affiliate is located. However, a general inability to enforce IP protection is 

likely to increase incentives for employees to leave a foreign affiliate with stolen 

technology, setting themselves up as competitors.18 Similarly, foreign affiliates with local 

joint venture partners in an environment of weak IP protection are more likely to suffer 

loss of IP through opportunistic behavior on the part of the venture partner. 

It is important to recognize that the various international flows (exports, affiliate sales, 

and license and royalty fees) are interrelated because they are often intertwined in the 

general operations of MNCs. In 2007, approximately 41 percent of exports of parents of 

U.S. MNCs worldwide were exports to their foreign affiliates. Similarly, in 2008, 

approximately 61 percent of all U.S. receipts of license and royalty fees worldwide were 

receipts by parents of U.S. MNCs from their foreign affiliates (62 percent for receipts 

from China). Thus, factors that tend to encourage or discourage U.S. FDI in China tend to 

encourage or discourage complementary flows of U.S. exports and U.S. receipts of 

license and royalty fees. 

Exports 

The strength of IP protection may affect the magnitude of U.S. exports to China 

independently of the relationship of such exports to FDI. Analysts have noted that 

stronger IP protection has both a market-expansion effect and a market-power effect on 

exports. 19 The market-expansion effect, which associates stronger IP protection with 

more exports, takes place because exporters are less willing to ship goods to countries 

with weak IP protection because of concerns that the goods will be imitated or reverseengineered. The market-power effect, which associates stronger IP protection with fewer 

exports, could arise because rights-holders use the monopoly power generated by IP 

protection to reduce exports in order to raise prices. 

These effects depend on the imitative capabilities of firms in the importing country. If 

technical capacities are strong because of a large supply of scientists and engineers and 

high R&D spending, such as in China, the threat of imitation is greater. In such a case, 

raising IP protection from a formerly weak level would be expected to have a larger 

positive impact on exports. Similarly, in importing countries where patent rights are 

strong and the imitative capacity of local firms is weak, exporters have fewer concerns 

about imitation. Thus, exporters are better able to exercise monopoly power, and the 

market-power effect would more likely dominate, associating stronger IP protection with 

a contraction in exports. In intermediate cases (strong IP protection/strong imitative 

capacity or weak IP protection/weak imitative capacity) the effect on trade of 

strengthening IP protection on trade is ambiguous. 

18 USITC, hearing transcript, June 15, 2010, 24 (testimony of C. Fritz Foley, Harvard Business School). 19 Smith, “Are Weak Patent Rights a Barrier to U.S. Exports?” 1999; Yang and Huang, “Do Intellectual 

Property Rights Matter to Taiwan’s Exports?” 2009. 
6-10

 

A number of studies have found that exports are greater to countries with stronger IP 

protection. These results have been found for U.S. exports,20 in multi-country studies,21

and for Taiwan’s exports. 22 However, the effect of stronger IP protection on exports 

depends on the type of goods exported and the characteristics of the importing country. 

Additionally, the effects of stronger IP protection on exports have been found to be 

greater when the goods exported are technology-intensive or patent-intensive.23 Stronger 

IP protection may also be more likely to promote exports in cases where the importing 

country has strong imitative capacity, as measured by such indices as high levels of R&D 

or high employment of scientists and engineers in the importing country.24 As discussed 

above, there is a disincentive to export to countries with both weak IP protection and 

strong imitative capacities, since exported goods may be subject to imitation through 

reverse engineering.25 

Foreign Direct Investment 

The consensus of empirical research is that stronger IP protection in the host country is 

associated with greater FDI. This suggests that the ability to enforce licensing contracts 

between parents and affiliates is important for MNCs, and that the possibility of 

substitution between FDI and licensing to outside parties as alternate methods of market 

service is less important. If substitution between FDI and licensing were widespread, 

stronger IP protection would likely lead to more licensing and less FDI. 

Stronger IP protection is more likely to be associated with more inbound FDI in 

industries with high R&D or technology intensity,26 and for MNCs that receive larger 

technology payments from their affiliates.27 The type of FDI engaged in by MNCs may 

also depend on the strength of IP protection—countries with stronger IP protection tend 

to attract more production-oriented FDI, while FDI in countries with weaker IPR is more 

likely to be limited to sales offices.28 It has been shown that countries that increase their 

20 Branstetter et al., “Intellectual Property Rights, Imitation, and Foreign Direct Investment,” 2007; Smith, 

“Are Weak Patent Rights a Barrier to U.S. Exports?” 1999. The paper by Branstetter et al. uses the number of 

new goods exported to a country that has undergone a patent reform as a measure of exports. Counting new 

goods avoids the problem that exists when using the value of exports, i.e., determining whether increases in 

values due to increases in quantities exported (the market expansion effect) or increases in prices (the market 

power effect). 21 Falvey, Foster, and Greenaway, “Trade, Imitative Ability and Intellectual Property Rights,” 2009; Ivus, 

“Do Stronger Patent Rights Raise High-Tech Exports?” 2010; Maskus and Penubarti, “How Trade-Related 

Are Intellectual Property Rights?” 1995; Vichyanond, “Intellectual Property Protections and Patterns of 

Trade,” 2009. 22 Yang and Huang, “Do Intellectual Property Rights Matter to Taiwan’s Exports?” 2009. 23 Ivus, “Do Stronger Patent Rights Raise High-Tech Exports?” 2010; Vichyanond, “Intellectual Property 

Protections and Patterns of Trade,” 2009. 24 Falvey, Foster, and Greenaway, “Trade, Imitative Ability and Intellectual Property Rights,” 2009; Ivus, 

“Do Stronger Patent Rights Raise High-Tech Exports?” 2010; Smith, “Are Weak Patent Rights a Barrier to 

U.S. Exports?” 1999. 25 There are some counterexamples of studies finding that increased IP protection is negatively associated 

with U.S. exports. These include An, Maskus, and Pttitanun, “Duration of Rent Extraction and the Entry 

Mode Decision” 2008; Nair-Reichert and Duncan, “Patent Regimes, Host-Country Policies, and the Nature of 

MNE Activities,” 2008 (for exports to unaffiliated parties). The results of these studies could be interpreted 

as favoring the market-power hypothesis, but they may also arise from differences in the variables included 

and methods used. 26 Nair-Reichert and Duncan, “Patent Regimes, Host-Country Policies, and the Nature of MNE 

Activities,” 2008; Smith, “How Do Foreign Patent Rights Affect U.S. Exports, Affiliate Sales, and 

Licenses?” 2001. 27 Branstetter et al., “Intellectual Property Rights, Imitation, and Foreign Direct Investment,” 2007. 28 Smarzynska Javorcik, “The Composition of Foreign Direct Investment,” 2004. 
6-11

 

FDI in China also tend to increase their level of patent applications in China,29 providing 

further evidence of linkages between FDI and IP protection in China’s market 

specifically. 

License fees, royalties, and other technology payments 

Countries with stronger IP protection have been consistently found to pay more in license 

fees, royalties, and other technology payments,30 as one would expect. Both U.S. firms31

and Japanese firms32 receive higher technology payments from countries with stronger IP 

protection. As with exports and FDI, the effect of IP protection on technology payments 

is variable, and is likely to be greater for MNCs for which patents and/or licensing are 

more important to begin with. The types of technology transferred may also depend on 

the strength of IP protection. For Japanese MNCs, for example, technology payments 

from countries with stronger IP protection include a greater share of patent license fees, 

as opposed to payments for know-how not associated with a patent.33

 

Effects in the U.S. Market and in Third-country Markets 

IPR infringement affects more than just goods and services sold in the infringing country. 

An infringing country may also export infringing products to the IP holder’s home 

country and third-country markets. Thus, infringement in China can affect the markets of 

U.S. firms in the United States and in third countries. 

Effects mediated through the parents of U.S. MNCs 

The level of IP protection in China is likely to affect licensing and royalty fees received 

from China, U.S. FDI in China (i.e., the activities of U.S. foreign affiliates), and exports 

to China. These changes, in turn, affect the performance of U.S. MNCs with exposure to 

China. In principle, these effects could be either positive or negative. For example, an 

increase in FDI could substitute for exports from the United States, reducing activity in 

the parent firm’s U.S. operations. This could happen if an MNC chooses to serve a 

foreign market by producing in that market rather than exporting from the United States. 

Conversely, an increase in FDI could lead to more exports of the U.S. parent to its own 

affiliate, increasing activity in the parent firm’s U.S. operations. This could happen, for 

example, if the production process is fragmented, so that parts or components are 

exported from the United States for final assembly in another country.34 

On balance, though, U.S. parents and their foreign affiliates are likely to either grow 

together or contract together. U.S. parents with expanded affiliate activity are likely to 

export more to their foreign affiliates, to receive greater license and royalty payments 

from their foreign affiliates, and to engage in more general headquarters activities to 

29 Awokuse and Yin, “Intellectual Property Rights and the Surge of FDI in China,” 2010. 30 Other technology payments include payments for consulting and engineering services. 31An, Maskus, and Puttitanun, “Duration of Rent Extraction and the Entry Mode Decision”, 2008; 

Branstetter, Fisman, and Foley, “Do Stronger Intellectual Property Rights Increase International Technology 

Transfer?” 2006; Branstetter et al., “Intellectual Property Rights, Imitation, and Foreign Direct Investment,” 

2007; Nair-Reichert and Duncan, “Patent Regimes, Host-Country Policies, and the Nature of MNE 

Activities,” 2008. 32 Wakasugi and Ito, “The Effect of Stronger Intellectual Property Rights on Technology Transfer,” 2009. 33 Nagaoka, “Does Strong Patent Protection Facilitate International Technology Transfer?” 2009. 34 See also Branstetter, Fisman, and Foley, “Do Stronger Intellectual Property Rights Increase 

International Technology Transfer?” 2006. 
6-12

oversee and coordinate the activity of foreign affiliates, than are U.S. companies with 

little or no activity in foreign affiliates.35 This general complementarity between different 

kinds of MNC activity needs to be taken into account in assessing the effects of any 

potential change in China’s IP policies on the U.S. economy. 

Competition from counterfeit goods 

U.S. sales of genuine products are likely to be negatively affected by sales in the United 

States of counterfeit goods imported from China. Because counterfeit goods can usually 

be produced relatively cheaply, they can undercut the sales of authentic goods, reducing 

the profits of the producers of the authentic goods. Moreover, because counterfeit goods 

are often of lower quality than the authentic goods, they can tarnish the brand reputation 

of the authentic goods and can also lead to false warranty claims directed to the producers 

of the authentic goods. In some industries, such as shoes and handbags, Chinese 

counterfeits may displace sales of authentic imported goods from third countries (e.g., 

Italy). These goods can enter into U.S. distribution channels, affecting wholesalers and 

retailers who either handle the counterfeits unknowingly or who handle legitimate 

merchandise in competition with counterfeits. In other cases, the displaced sales may 

represent goods originally produced by U.S. firms. 

Counterfeit goods also compete with goods of third countries in markets around the 

world. 36 Chinese firms that imitate key technologies of non-Chinese origin through 

infringement may be able to sell such imitative goods internationally, displacing sales or 

undercutting prices of legitimate goods and potentially threatening the ability of U.S. 

firms to appropriate the rewards from their core innovative competencies.37

Literature Review 

Previous Surveys 

While there have been studies that attempt to measure either the global effects of IPR 

infringement or the sectoral effects of IPR infringement within the U.S. economy, the 

only previous effort to quantify the effect of IPR infringement broadly across the entire 

U.S. economy was the USITC’s 1988 study of foreign protection of intellectual property 

rights.38 The scope of the study was the effect of infringement worldwide, and results 

were based on responses to questionnaires sent to the 1986 Fortune 500 and to 236 other 

firms; the latter were selected specifically to focus on firms expected to rely on IP—firms 

in the computer software/hardware, motion pictures, records and tapes, fashion apparel, 

toys, and sporting goods sector. 

Although not all firms queried responded to the questionnaire, the study estimated, based 

on plausible assumptions about the loss-to-sales ratios for non-respondents and non-

 35 Examples of evidence of positive linkages between domestic activity and investment abroad include 

Desai, Foley, and Hines, “Foreign Direct Investment and Domestic Economic Activity,” 2005, and Hanson, 

Mataloni and Slaughter, “Expansion Abroad and the Domestic Operations of U.S. Multinational Firms,” 

2003. Also, Koncz, “International R&D, Technological Capability, and Productivity,” 2010, finds that 

increased R&D in affiliates of U.S. MNCs enhances productivity in the parent company. 36 USITC, hearing transcript, June 16, 2010, 322–23 (testimony of James D’Addario, D’Addario and 

Company). 37 See generally chapters 3, 4, and 5. 

38 USITC, Foreign Protection of Intellectual Property Rights, 1988, appendix H. 
6-13

t 

piracy.

s would have been purchased, and at what price, if 

pirated movies were unavailable. 

 

surveyed firms, that the loss to the U.S. economy was $43–$61 billion. One limitation of 

the methodology was the self-reported nature of the empirical loss estimates, suggesting a 

likely upwards bias. 39 In addition, extrapolating beyond the respondents to the entire 

economy was problematic (as was noted in the report). Moreover, the study did not 

directly address the question of lost profits to domestic firms. 

In 2008, the Organization for Economic Co-operation and Development (OECD) 40

employed a different methodology for measuring the economic effects of IPR 

infringement. It relied on global customs seizure data to estimate the worldwide value of 

infringing trade (which it estimated at up to $250 billion for 2007) and the value of 

counterfeit and pirated goods in world trade (which it estimated at 1.95 percent of the 

value of 2007 world trade). The crucial assumption in all of the OECD’s estimates is that 

the rate at which certain products are seized by customs authorities is highly correlated 

with the total counterfeit trade in that product. 41 What the OECD referred to as a 

“ceiling” estimate of $250 billion is based on an arbitrarily estimated share of counterfeit 

trade, referred to as a “fix-point,”42 in the imports most widely seized that originated 

from the most “infringement-intensive economies.” Inferring an actual share of 

counterfeit trade from customs seizure data is problematic.43 This estimate, moreover, 

does not account for lost export sales of legitimate exporters due to infringement, or lost 

domestic sales due to infringement, or lost digital sales resulting from Internet copyrigh

44

There have also been a number of industry sector studies sponsored by trade groups in 

recent years. A 2005 study conducted on behalf of the Motion Picture Association of 

America (MPAA) estimated global losses to MPAA members due to piracy at 

$6.1 billion in 2005. The study estimated that piracy rates were highest in China, with 

over 90 percent potential market loss, and that MPAA members lost an estimated 

$244 million in revenue to Chinese piracy. 45 The study, however, offers limited 

information about the survey and estimation techniques used. It does state that the firm 

conducting the research surveyed 20,600 consumers in 22 countries and estimated effects 

in 42 additional countries based on country-specific characteristics such as locals’ 

capacity to pay for products similar to movies. Nonetheless, it is difficult to determine 

from the study how many movie

The Business Software Alliance (BSA) and International Data Corporation (IDC) publish 

annual piracy estimates based on country surveys. The most recent of these studies 

 

39 This could be due to unrealistic assumptions about the numbers of infringing products purchased at 

home and abroad, and the likely propensity of those consumers to purchase non-infringed products at full 

reta

and Piracy,” 2008; OECD, “Magnitude of 

Cou

h IP holders notify to Customs) is quite small 

and

ate. 

ons made by 

enf approach except in rare circumstances.” 

il prices. 

40 OECD, “The Economic Impact of Counterfeiting 

nterfeiting and Piracy of Tangible Products,” 2009. 41 One factor not considered in this study is that generally Customs authorities seize only products whose

trademarks and copyrights are recorded with Customs (at least in the United States). The rate of recordation

i.e., the share of trademarked and copyrighted products whic

 varies widely from industry to industry. See chapter 2. 

42 OECD, “The Economic Impact of Counterfeiting and Piracy,” 2008, 111–14. 43 As such, this is neither a “ceiling” nor a “floor”– a higher “fix-point” would produce a larger estim 44 It is worth noting that an earlier study produced for the European Commission (CEBR, “Counting 

Counterfeits,” 2002, 6), stated that “although many existing estimates of the size of the counterfeiting and

piracy problems are based on extrapolating from the number of seizures, arrests, or convicti

orcement agencies, we do not recommend this

45 LEK, “The Cost of Movie Piracy,” 2005. 
6-14

obtain a legal copy at the average system price, if the pirated software were not available. 

, $16 billion in lost employee earnings and 

mo than $2.6 billion in lost tax revenues.” 

ion ($41.8 billion) in lost retail 

revenue and 610,000 job losses due to piracy by 2015. 

surveyed 6,000 consumer users and 4,300 commercial users in 28 countries. 46 IDC 

estimated piracy rates for 83 additional countries based on a correlation between the 

number of software units per PC and country characteristics such as GDP per capita, PC 

penetration, and the International Development Index,47 an emerging market measure. 

The study estimated that 43 percent of all software installed on PCs globally was 

unlicensed, with a commercial value of approximately $51.4 billion. China had an 

estimated 79 percent piracy rate in 2009, down 1 percent from the previous year. The 

commercial value of unlicensed software in China was estimated at approximately 

$7.6 billion, ranking second behind the United States. The study calculated the 

commercial value of unlicensed software using a blend of prices, including retail, volume 

license, and original equipment manufacturer prices, and considered free/open source 

software. The report uses the term “commercial value of pirated software” in place of the 

previous term “losses,” recognizing implicitly that not all pirated software users would 

Another recent study combined estimates of piracy losses generated by the MPAA and 

BSA studies mentioned above, along with estimates for some other “copyright” 

industries, with multipliers for how these losses would impact upstream and downstream 

sectors of the U.S. economy.48 The study concludes that direct losses to these industries 

in 2005 were over $25 billion, but that the total cost to the U.S. economy exceeded 

“$58 billion in lost output, 373,375 lost jobs

re

The International Chamber of Commerce (ICC) has launched an initiative to combat 

piracy—the Business Action to Stop Counterfeiting and Piracy (BASCAP). BASCAP has 

commissioned a series of reports to provide more reliable piracy loss estimates. In the 

past year, two firms (TERA Consultants and Frontier Economics) published reports 

quantifying piracy for a number of countries.49 TERA Consultants’ report estimates the 

effect of piracy on employment for the “most at risk” creative core industries and 

supporting non-core industries.50 The study integrates Eurostat data with country-specific 

and industry-specific survey results in the five largest EU countries. 51 It extrapolates 

effects in these countries to the EU-27. It assumes a much smaller substitution rate52 than 

industry has reported–5 percent for digital and 10 percent for physical cinema piracy. The 

study finds a total of €9.9 billion ($13.8 billion) 53 in retail losses for the creative 

industries in the EU, with 186,400 direct and indirect job losses. Based on increasing 

Internet access and file-sharing, it predicts €30 bill

 46 BSA and IDC, “Seventh Annual BSA/IDC Global Software and Piracy Study,” 2010. 47 This is published by the International Telecommunications Union. 48 Siwek, “The True Cost of Copyright Industry Piracy to the U.S. Economy,” 2007. The core “copyright 

industries” examined were motion pictures, sound recordings, packaged software, and video games. 49 Frontier Economics, “The Impact of Counterfeiting on Governments and Consumers,” 2009; TERA 

Consultants, “Building a Digital Economy,” 2010. 50 The four core industries analyzed are recorded music, film, TV series, and software. The non-core 

industries convey goods and services to consumers. TERA Consultants, “Building a Digital Economy,” 2010, 

5. 51 These counties are the UK, France, Germany, Italy, and Spain. 

52 The substitution rate is defined as the percentage of sales that would go to a legitimate product of 

pirated product became unavailable. 53 Based on the 30-day average exchange rate (October 13–November 12, 2010) reported in IMF, IMF 

Exchange Rate Database. 
6-15

losses are proportional to GDP and employment. The study 

estimates that counterfeiting and piracy cost the G20 economies €62 billion ($86.4 

approach ignores both the fact that resources in expanding 

industries must be drawn from other sectors in the economy and the effects of changes in 

. The GAO report did not itself attempt to quantify the 

 

Frontier Economics’ publication builds upon the OECD findings. It studies four at-risk 

industries: luxury goods, food and beverage products, pharmaceuticals, and software. It 

uses OECD data to determine the size of the industry, and surveys both firms and 

consumers to determine the rate of those who knowingly and unknowingly purchase 

counterfeit and pirated goods. Frontier Economics assumes that unknowing purchasers of 

counterfeit and pirated goods are more price-sensitive than knowing purchasers––i.e., 

they have a higher elasticity of substitution of demand, although they do not substitute 

fake goods for authentic goods one-to-one. The substitution rate for knowing 

consumption is much lower—for example, 2 percent for food and beverage products in 

the UK. The study examines the United Kingdom (UK) and Mexico, and extrapolates 

these results 54 to all G20 countries. 55 It estimates that lost taxes and higher welfare 

spending cost the UK government €.4.1 billion ($5.7 billion), and the Mexican 

government €1.4 billion ($2.0 billion), and that the UK and Mexico, respectively lost 

380,000 and 480,000 jobs due to piracy and counterfeiting. To extrapolate monetary 

losses to the government from the four sectors to the rest of the economy, the study 

discounts the losses for the rest of the economy by 50 percent to account for the fact that 

the sectors might be more prone to counterfeiting than the rest of the economy. The totals 

for the UK and Mexico are then are extrapolated to the G20 economies, assuming that 

monetary and employment 

billion) in lost taxes and welfare spending, and that they destroy approximately 

2.5 millions jobs annually. 

A recent U.S. Government Accountability Office (GAO) report has criticized prior 

estimates of IPR infringement losses, including the BSA and MPAA studies discussed 

above, questioning the underlying assumptions on which the estimates were made.56 Two 

of these assumptions were: (1) the substitution rate, (the amount of legitimate goods 

consumers would purchase in place of pirated goods); and (2) the value of infringing 

goods (which may be of lower quality and significantly cheaper than the original.) The 

GAO expressed concern about BSA’s use of a one-to-one substitution rate and its method 

for extrapolating results from surveyed countries to non-surveyed countries. As for 

studies that use multipliers derived from input-output analysis to estimate the impact of 

piracy to the broader economy,57 the report questioned the usefulness of multipliers for 

this purpose. The multiplier 

consumer income on demand

effects of IPR infringement. 

Econometric Methods 

Estimating the Effects of IP Policies on International Transactions 

As discussed earlier, there is an extensive body of literature that attempts to estimate the 

relationship between IP protection and international trade and transactions. In general, the 

54 That is, only 2 percent of knowing purchases of such fake products would go to legitimate products if 

the fakes became unavailable. 55 The G-20 is a group of 19 countries, plus the European Union, whose finance ministers and central 

bank governors meet on a regular basis. The members of the G-20 are Argentina, Australia, Brazil, Canada, 

China, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, Saudi Arabia, South Africa, 

Republic of Korea, Turkey, United Kingdom, the United States, and the European Union. 56 GAO, “Intellectual Property,” 2010. 

57 For example, Siwek, “The True Cost of Copyright Industry Piracy to the U.S. Economy,” 2007. 
6-16

 countries with high imitative capacity. The approaches vary across 

studies as well; importantly, while some studies focus on exports, FDI, or license fees 

er more than one of these variables 

simultaneously.

performance pre- and post-reform. This 

approach can reduce subjectivity; on the other hand, it effectively assumes that each 

e trademark rights index 

includes “coverage, procedures [including enforcement], and international treaties.” 63 It 

 

results support the hypothesis that countries with stronger IP protections both attract more 

FDI and generate more license fees and royalties for MNCs investing in those countries. 

On balance, the results also suggest that exports tend to be greater to countries with 

stronger IP protections, particularly for patent-intensive or technology-intensive goods, 

and for exports to

and royalties individually, others consid

58

 

Indices of the Quality of IPR Regimes 

Measuring international differences in the strength of IPR regimes is an important part of 

quantitative analysis of the effects of IP protection. IP laws are multifaceted, and vary 

widely both in scope and in the provisions applied to various types of rights (i.e. patents, 

copyrights, and trademarks). They also vary by degree of implementation and 

enforcement. As a result, efforts to evaluate the strength of IP protection tend to include a 

great deal of subjective assessment. Several methods of assessing IP protection have been 

attempted. A simple approach is to construct a binary variable for major patent reforms, 

analyzing the difference between economic 59

reform undertaken is similar in scope and that there was a one-time reformation rather 

than a gradual improvement of IP protection. 

The most frequently used indicator of the strength of national patent rights is that 

developed in a series of papers by Walter Park and various coauthors.60 The most recent 

of these papers presents four different indices, three of which are de jure measures of IP 

protection and one of which attempts to examine de facto implementation. 61 The first 

three indices respectively focus on the de jure IP protection of patent, copyrights, and 

trademark rights. The patent rights index has been compiled for the longest period of 

time. There are five components to this measure: “extent of coverage [what types of IP 

can be protected], membership in international treaties, duration of protection, absence of 

restrictions on rights, and statutory enforcement provisions [legal recourses that can be 

undertaken].”62 The copyright index consists of “coverage, usage [control of others’ use], 

enforcement, and membership in international treaties.” Th

should be noted that although there is an enforcement component to each of these 

measures, it constitutes only a small share of the overall score. 

 58 Studies considering exports, FDI, and license and royalty payments together include An, Maskus

Puttitanun, “Duration of Rent Extraction and the Entry Mode Decision,” 2008; Branstetter et al., “Intellectu

Property Rights, Imitation, and Foreign Direct Investment,” 2007; Nair-Reichert and Duncan, “Paten

Regimes, Host-Country Policies, and the Nature of MNE Activities,” 2008; and Smith, “How Do Foreign 

Patent Rights Affect U.S. Expo

, and 

al 

t 

rts, Affiliate Sales, and Licenses?” 2001. Ferrantino, “The Effects of 

Inte t not 

sman, and Foley, “Do Stronger Intellectual Property Rights Increase International 

Tec

f Patent Rights,” 

200 nology Transfer and the Economic Implications,” 2008. 

ippoldt, “Technology Transfer and the Economic Implications,” 2008. 

bid., 16. 

llectual Property Rights on International Trade and Investment,” 1993, analyzes exports and FDI, bu

license and royalty payments. 59 Branstetter, Fi

hnology Transfer?” 2006; Branstetter et al., “Intellectual Property Rights, Imitation, and Foreign Direct 

Investment,” 2007. 60 Ginarte and Park, “Determinants of Patent Rights,” 1997; Park and Wagh, “Index o

2; Park and Lippoldt, “Tech

61 Park and L

62 Ibid., 15. 

63 I
6-17

f 

IP protections include membership in international IPR agreements, the Rapp and 

 software piracy rate, discussed earlier in this chapter.67 

domestic firms. It is also widely recognized that indigenous 

innovation policies are a relatively new phenomenon, increasing in importance from 

s (in particular, by purchasing the output of foreign affiliates 

operating in China), it may provide important clues regarding recent changes in 

ection 

olicies and the development of favored firms and industries in China, recognizing that 

these policies are still evolving and that data therefore may be difficult to obtain.69

 

Another indicator of national IP protections is a biennial survey of business executives 

conducted by the World Economic Forum. 64 This survey is based on overall IP 

protection, rather than on patents, copyrights, or trademark rights specifically. On the one 

hand, the responses display considerable subjectivity; as the survey is based on the 

opinion of executives regarding a particular country, the results may thus not be 

comparable across countries. On the other hand, the survey may capture valuable 

information on actual enforcement. Other variables used in international comparisons o

65

Rozek index,66 and the business

Indigenous Innovation 

Like IPR infringement, China’s indigenous innovation policies can affect the U.S. 

economy and employment. It is important to first clarify what is meant by such policies. 

For example, recent formal statements of China’s policy regarding preferences for 

indigenous innovation goods in government procurement do not specify whether the 

policies cover purchases of SOEs, or only the purchases of government agencies. 

However, there is significant evidence that Chinese SOEs are sensitive to the authorities’ 

desire to promote indigenous innovation, and may prefer to procure high-technology 

goods from Chinese 68

about 2006 onwards. 

If SOEs show preferences for Chinese domestic goods in product categories associated 

with indigenous innovation, and if those preferences have intensified in recent years, one 

would expect to see a decline in imports by SOEs in those product categories, either in 

absolute terms or relative to some benchmark (e.g., China’s total imports of all goods, 

sales of SOEs, imports by China by firms other than SOEs, etc.). It may be possible to 

identify a trend in imports of product categories associated with indigenous innovation by 

SOEs to test the idea that SOEs’ procurement preferences have recently changed. While 

the use of Chinese import data does not address all the ways in which Chinese firms may 

buy from foreign firm

procurement practice. 

Over the long term, indigenous innovation policies have the potential to fundamentally 

affect the balance of trade in IP-sensitive industries. It will be necessary to analyze the 

effects of these policies in conjunction with other elements of China’s IP prot

p

64 This index is used in Yang and Huang , “Do Intellectual Property Rights Matter to Taiwan’s Exports?” 

2009. 65 Ferrantino, “The Effect of Intellectual Property Rights on International Trade and Investment,” 1993. 66 Rapp and Rozek, “Benefits and Costs of Intellectual Property Protection in Developing Countries,” 

1990. This index is used in Maskus and Penubarti, “How Trade-Related Are Intellectual Property Rights,” 

1995; Smith, “How Do Foreign Patent Rights Affect U.S. Exports, Affiliate Sales, and Licenses?” 2001; and 

Vichyanond, “Intellectual Property Rights and Patterns of Trade,” 2009. 67 See Nagaoka, “Does Strong Patent Protection Facilitate International Technology Transfer?” 2009. 68 See chapter 5. 

69 See Emergency Committee for American Trade (ECAT), written submission to the USITC, June 22, 

2010, for a discussion of the relationships between indigenous innovation policies, IP protection, and the 

development of SOEs. 
6-18

imulation Methods 

ons in China, or if IPR were 

adequately and effectively enforced, as required by TRIPS? 

n their construction and the quality of the underlying 

data used to construct the models. 

ts to adjust these estimates to make them more 

conservative and relatively consistent. 

exports, productivity, and 

investment, as described in the section on “Strategies” above. 

 

S

Simulation modeling, using general equilibrium methods, can be used to address 

“counterfactual” questions relating to IP protection in China. For example, what would be 

the effect on the U.S. economy if there were no IPR violati

Simulation models relate economic observations and assumptions to derive their findings. 

They use a numerical description of the economy, combined with information on the 

ways aspects of that economy (such as IPR enforcement) may be changed, and derive 

implications or insights for the effects on the rest of the economy. Results of such models 

depend on the assumptions used i

Few studies have tried to use simulation methods to assess the effects of IPR 

infringement on the U.S. economy, or on any other economy. The OECD in 2008 

enumerated the types of economic effects infringement can have (on employment, tax 

revenues, firm reputation, etc.) without quantifying the effects. 70 Another study went 

substantially further by applying input-output multipliers to some initial estimates of the 

direct costs of infringement, in order to derive effects on the upstream suppliers of the 

affected firms (which, in this study, consisted of the “copyright industries,” essentially 

software and entertainment). 71 This is in fact the type of analysis that lies at the core of 

general equilibrium simulation, though it misses many of the effects of infringement on 

price levels, consumer welfare (including commercial consumers of IPR products), and 

trade. The analysis also relies on initial estimates of the direct effects of infringement that 

are derived from a variety of secondary sources, and may be constructed in arguably 

inconsistent ways, although it attemp

A general equilibrium analysis of the effects of the improvement of IPR enforcement in 

China on the U.S. economy would, in the ideal case, provide a framework for 

simultaneously examining a variety of effects of IPR enforcement policy. Specifically, it 

could generate estimates of the effect of Chinese IPR infringement on output, 

employment, investment, and trade effects for (1) industries directly affected; (2) 

industries or agents who supply directly affected industries and agents with materials and 

services; (3) industries, agents, or final consumers who are the customers of the affected 

industries, (4) governments, and (5) trading partners. In this ideal case, one might also 

consider various types of IPR enforcement working simultaneously and reinforcing one 

another. This method would require a comprehensive depiction of the U.S. economy and 

perhaps of the Chinese economy, if it were to be modeled explicitly. It would also require 

information on the first-order effects of infringement on 

A single-country model of the U.S. economy, such as the USITC’s U.S. Applied General 

Equilibrium (USAGE) model, can show how that economy responds to changes in IPR 

policy. In order to do that, the model would have to be supplied with numerical 

descriptions of the estimated effects of those policy changes—that is, with changes in 

70 OECD, “The Economic Impact of Counterfeiting and Piracy,” 2008. 71 Siwek, “The True Cost of Copyright Industry Piracy,” 2007. 
6-19

p cy changes. Such 

estim

emand for exports of U.S. IPR goods, if the 

ed. 

roved IPR on R&D spending in U.S. parents and in 

 Changes in prices of IPR goods imported from China (if the 

ould enable some of the estimated effects of IPR policy 

changes on the U.S. economy to be derived from estimates of the initial effects on the 

Chinese econ

asing the price of software) 

stment in IP in China (again due to 

IPR enforcement) would also influence production costs and the 

tage of the quantitative 

information on policy changes that can be derived from testimony, surveys, and official 

sources and from the econometric analysis of such information. 

rices of goods, quantities of goods, or taxes corresponding to the poli

ated effects could include: 

 Changes in d

availability of low-cost infringing goods in China or other markets

is reduc

 Changes in the expected return to IPR-related U.S. investment in 

China. 

 Effects of imp

foreign affiliates, and of the effects of such spending on 

productivity. 

availability of low-cost pirated goods is reduced, for example). 

A global model, such as the model of the Global Trade Analysis Project (GTAP), would 

include a depiction of the Chinese economy as well as the U.S. economy and thirdcountry markets. Such a model w

omy. For example: 

 Estimates of changes in production costs in China (for example, 

because of IPR enforcement incre

would generate implications for changes in the price of Chinese 

exports, and in demand for imports. 

 Changes in the return on inve

supply of foreign investment. 

The representation of the U.S. economy in the USAGE model is much richer than in 

GTAP, incorporating more information on a greater number of industry sectors, labor 

force segments, and capital investment instruments. The GTAP model lacks much of this 

detail, but incorporates information on economic relationships among many countries. 

Linking two such models is a possible way to take full advan

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APPENDIX A 

REQUEST LETTER

MAX. BAUCUS, MONtANA, CHA!RMAN 

JOHN D. ROCKEfELLER IV, WEST VIRGiNIA CHUCK GR,A,SSLEY, IOWA 

KENT CONRAD, NORTH DAKOTA ORRlN UTAH 

JEFF BINGAMAN, NEW MEXICO OLYMPJAJ. MAINE 

JOHN F. KERRY, MASSACHUSETTS JON KYL, ARJZONA 

BLANCHE i.. LlNCOl.N. ARKANSAS JIM BUNNING, KENTUCKY 

RON WYDEN, OREGON M!KE CRAPO, IDAHO 

CHARLES E. SCHUMER, NEW YORK PAr ROBEATS, KANSAS 

DEBBiE STABENOW, M1CHIGAN JOHN ENSIGN, NEVADA 

MARIA CANTWELL, WASHINGTON MICHAEL B. ENZI, WYOMING 

BflL NELSON, FLORiDA .JOHN CORNYN, TEXAS 

AOBE:RT Mr:N£ND2Z, NEW Jf.RSEY 

THOMAS R. CARPER. DELAWARE 

RUSSELL SULUV,A.N, STAfF DIRECTOR 

KOLAN OAVIS, REPUBLICAN STAFF OIRECTOR ANO CHlEiF COUNSEL 

The Honorable Shara L. Aranoff 

Chairman 

U.S. International Trade Commission 

500 E Street, S.W. 

Washington, DC 20436 

Dear Chairman Aranoff, 

'lanitrd ~tatcs ~rnatr COMMITfEE ON FINANCE 

WASHINGTON, DC 20510-6200 

April 19, 2010 DOCKET 

NUMBER 

t.lf- 2.otv 

--_ .... ----- oiti~~ -~f -th ;--_. --------

SeCfE~tary . 

Int'l Trade Commission 

We are writing to request that the U.S. International Trade Commission (Commission) conduct 

an investigation under section 332(g) of the Tariff Act of 1930 (19 U.S.C. 1332(g» regarding the 

effect on the U.S. economy and U.S. jobs of intellectual property rights (IPR) infringement in 

China. 

Intellectual property plays a key role in driving innovation, productivity, employment, and 

growth in the U.S. economy. The U.S. Department of Commerce reports that intellectual 

property accounts for more than half of all U.S. exports, and helps drive 40 percent of our 

economic growth. In 2008, for example, U.S. receipts of royalties and license fees from other 

countries yielded a $75 billion trade surplus. 

Infringement of U.S. IPR around the globe threatens American jobs. IPR infringement, both in 

the physical world and online, is estimated to cost U.S. compatlies billions of dollars per year in 

lost revenues in China alone. More than 80 percent ofIPR-infringing goods seized at the U.S. 

border are of Chinese origin. And troubling recent developments in China, including China's 

"indigenous innovation" procurement policies, may exacerbate these losses by limiting the, 

ability of U.S. innovative companies to participate in the Chinese market. 

Despite widespread evidence of the harm to U.S. industries, authors, and artists resulting from 

IPR infringeme~t in ~hin~ the U.S. Government has not conducted a comprehensive economic 

analysis of the effect of China's ineffective IPl~ protection and enforcement on the U.S. economy 

and U.S. jobs. To assist us in better understandiilg these effects, we req~est the Commission to 

provide two reports, as described below. . 

1 

A-3
Report 1: Based on a review of the literature and other available information, we 

request the Commission to provide a report that: 

• Describes the principal types of reported IPR infringement in China; 

• Describes China's indigenous innovation policies; and 

• Outlines analytical frameworks for determining the quantitative effects of the 

infringement and indigenous innovation policies on the U.S. economy as a whole and 

on sectors of the U.S. economy, including lost U.S. jobs. 

This first report should be delivered by November 19,2010. 

Report 2: Based on an analysis of data and other information from available sources, 

including a survey of U.S. firms, and the application of the analytical frameworks outlined in the 

first report, we request the Commission to provide a second report that: 

• Describes the size and scope of reported IPR infringement in China; 

• Provides a quantitative analysis of the effect of reported IPR infringement in China 

on the U.S. economy and U.S. jobs, including on a sectoral basis, as well as potential 

effects on sales, profits, royalties, and license fees of U.S. firms globally, to the extent 

primary data can be collected; and 

• Discusses actual, potential, and reported effects of China's indigenous innovation 

policies on the U.S. economy and U.S. jobs, and quantifies these effects, to the extent 

feasible. 

This report should be delivered by May 2,2011. 

In preparing its reports, we do not expect the Commission to make findings in either report 

regarding the legal merits of any reported IPR infringement. 

As we intend to make the reports available to the public, we request that the Commission not 

include confidential business information in its reports. 

Sincerely, 

2 

Charles 

U,.J.~~ E. Grassley 

Ranking Member 

A-4
APPENDIX B 

FEDERAL REGISTER NOTICE

Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Notices 25883 

must submit a written request to Karl 

Sandwell-Weiss, Coronado National 

Forest Office at the address stated above 

by August 9, 2010. Upon determination 

by the authorized officer that a public 

meeting will be held, a notice of the 

time and place will be published in the 

Federal Register and in at least one 

local newspaper no less than 30 days 

before the scheduled date of the 

meeting. 

The withdrawal extension application 

will be processed in accordance with 

the regulations set forth in 43 CFR 

2310.4. 

Authority: 43 CFR 2310.3–1(b). 

Deborah E. Stevens, 

Acting, Deputy State Director, Office of 

Communications. 

[FR Doc. 2010–10989 Filed 5–7–10; 8:45 am] 

BILLING CODE 4310–11–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation No. 332–514] 

China: Intellectual Property 

Infringement, Indigenous Innovation 

Policies, and Frameworks for 

Measuring the Effects on the U.S. 

Economy 

AGENCY: United States International 

Trade Commission. 

ACTION: Institution of investigation and 

scheduling of hearing. 

SUMMARY: Following receipt of a request 

from the United States Senate 

Committee on Finance (Committee) 

dated April 19, 2010, the U.S. 

International Trade Commission 

(Commission) instituted investigation 

No. 332–514, China: Intellectual 

Property Infringement, Indigenous 

Innovation Policies, and Frameworks for 

Measuring the Effects on the U.S. 

Economy, for the purpose of preparing 

the first of two reports requested by the 

Committee, and has scheduled a public 

hearing in connection with 

investigations relating to both reports 

for June 15, 2010. 

DATES: 

June 1, 2010: Deadline for filing 

requests to appear at the public hearing. 

June 3, 2010: Deadline for filing prehearing briefs and statements. 

June 15, 2010: Public hearing. 

June 22, 2010: Deadline for filing 

post-hearing briefs and statements. 

July 9, 2010: Deadline for filing all 

other written submissions concerning 

investigation No. 332–514. 

November 19, 2010: Transmittal of 

first report to the Senate Committee on 

Finance. 

ADDRESSES: All Commission offices, 

including the Commission’s hearing 

rooms, are located in the United States 

International Trade Commission 

Building, 500 E Street, SW., 

Washington, DC. All written 

submissions should be addressed to the 

Secretary, United States International 

Trade Commission, 500 E Street, SW., 

Washington, DC 20436. The public 

record for this investigation may be 

viewed on the Commission’s electronic 

docket (EDIS) at http://www.usitc.gov/ 

secretary/edis.htm. 

FOR FURTHER INFORMATION CONTACT: 

Project Leaders Katherine Linton 

(katherine.linton@usitc.gov or 202–205– 

3393) or Alexander Hammer 

(alexander.hammer@usitc.gov or 202– 

205–3271) or Deputy Project Leader 

Jeremy Wise (jeremy.wise@usitc.gov or 

202–205–3190) for information specific 

to this investigation. For information on 

the legal aspects of these investigations, 

contact William Gearhart of the 

Commission’s Office of the General 

Counsel (202–205–3091 or 

william.gearhart@usitc.gov). The media 

should contact Margaret O’Laughlin, 

Office of External Relations (202–205– 

1819 or margaret.olaughlin@usitc.gov). 

Hearing-impaired individuals may 

obtain information on this matter by 

contacting the Commission’s TDD 

terminal at 202–205–1810. General 

information concerning the Commission 

may also be obtained by accessing its 

Internet server (http://www.usitc.gov). 

Persons with mobility impairments who 

will need special assistance in gaining 

access to the Commission should 

contact the Office of the Secretary at 

202–205–2000. 

Background: The Commission has 

instituted this investigation for the 

purpose of preparing the first of the 

reports requested by the Committee. The 

first report will: 

• Describe the principal types of 

reported IPR infringement in China; 

• Describe China’s indigenous 

innovation policies; and 

• Outline analytical frameworks for 

determining the quantitative effects of 

the infringement and indigenous 

innovation policies on the U.S. 

economy as a whole and on sectors of 

the U.S. economy, including lost U.S. 

jobs. 

As requested by the Committee, the 

Commission will deliver this first report 

by November 19, 2010. The Committee 

asked the Commission to provide a 

second report by May 2, 2011, that 

describes the size and scope of reported 

IPR infringement in China; that provides 

a quantitative analysis of the impact of 

reported IPR infringement in China on 

the U.S. economy and U.S. jobs and on 

the potential effects on sales, profits, 

royalties, and license fees of U.S. firms 

globally; and that discusses actual, 

potential, and reported effects of China’s 

indigenous innovation policies on the 

U.S. economy and U.S. jobs, and 

quantifies these effects, to the extent 

feasible. The Commission will publish a 

notice shortly that announces 

institution of an investigation to prepare 

this second report. 

Public Hearing: The Commission will 

hold a public hearing in connection 

with this investigation, and the 

investigation to be instituted in 

connection with the second report, at 

the U.S. International Trade 

Commission Building, 500 E Street, 

SW., Washington, DC, beginning at 9:30 

a.m. on June 15, 2010 (continuing on 

June 16, 2010, if needed). Requests to 

appear at the public hearing should be 

filed with the Secretary, no later than 

5:15 p.m., June 1, 2010, in accordance 

with the requirements in the 

‘‘Submissions’’ section below. All prehearing briefs and statements should be 

filed not later than 5:15 p.m., June 3, 

2010; and all post-hearing briefs and 

statements should be filed not later than 

5:15 p.m., June 22, 2010. In the event 

that, as of the close of business on June 

1, 2010, no witnesses are scheduled to 

appear at the hearing, the hearing will 

be canceled. Any person interested in 

attending the hearing as an observer or 

nonparticipant may call the Secretary to 

the Commission (202–205–2000) after 

June 4, 2010, for information concerning 

whether the hearing will be held. 

Written Submissions: In lieu of or in 

addition to participating at the hearing, 

interested parties are invited to submit 

written statements concerning this 

investigation. All written submissions 

concerning this investigation should be 

addressed to the Secretary, and should 

be received not later than 5:15 p.m., July 

9, 2010. All written submissions must 

conform with the provisions of section 

201.8 of the Commission’s Rules of 

Practice and Procedure (19 CFR 201.8). 

Section 201.8 requires that a signed 

original (or a copy so designated) and 

fourteen (14) copies of each document 

be filed. In the event that confidential 

treatment of a document is requested, at 

least four (4) additional copies must be 

filed, in which the confidential 

information must be deleted (see the 

following paragraph for further 

information regarding confidential 

business information). The 

Commission’s rules authorize filing 

submissions with the Secretary by 

facsimile or electronic means only to the 

extent permitted by section 201.8 of the 

rules (see Handbook for Electronic 


jlentini on DSKJ8SOYB1PROD with NOTICES

B-3
25884 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Notices 

Filing Procedures, http://www.usitc.gov/ 

secretary/fed_reg_notices/rules/ 

documents/ 

handbook_on_electronic_filing.pdf). 

Persons with questions regarding 

electronic filing should contact the 

Secretary (202–205–2000). Any 

submissions that contain confidential 

business information must also conform 

with the requirements of section 201.6 

of the Commission’s Rules of Practice 

and Procedure (19 CFR 201.6). Section 

201.6 of the rules requires that the cover 

of the document and the individual 

pages be clearly marked as to whether 

they are the ‘‘confidential’’ or ‘‘nonconfidential’’ version, and that the 

confidential business information be 

clearly identified by means of brackets. 

All written submissions, except for 

confidential business information, will 

be made available for inspection by 

interested parties. 

In its request letter, the Committee 

stated that it intends to make the 

Commission’s reports available to the 

public in their entirety, and asked that 

the Commission not include any 

confidential business information or 

national security classified information 

in the reports that the Commission 

sends to the Committee. Any 

confidential business information 

received by the Commission in this 

investigation and used in preparing this 

report will not be published in a manner 

that would reveal the operations of the 

firm supplying the information. 

By order of the Commission. 

Issued: May 5, 2010. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. 2010–11011 Filed 5–7–10; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Office of Justice Programs 

[OJP (NIJ) Docket No. 1518] 

NIJ Body Armor Compliance Testing 

Program Workshop 

AGENCY: National Institute of Justice. 

ACTION: Notice of meeting. 

SUMMARY: The National Institute of 

Justice (NIJ) is hosting a Body Armor 

Compliance Testing Program Workshop 

for manufacturers and test laboratories 

on Tuesday, May 18, 2010, from 8 a.m. 

to 3 p.m. NIJ is hosting this workshop 

specifically to update manufacturers 

and test laboratories with regard to the 

Compliance Testing Program, status of 

testing, administrative clarifications, 

and the follow-up inspection and testing 

process. This will be an open forum and 

there will ample opportunities for 

attendees to ask questions. Participants 

are strongly encouraged to come 

prepared to ask questions. 

Space is limited at this workshop, and 

as a result, only 100 participants will be 

allowed to register. We request that each 

manufacturer and test laboratory limit 

their representatives to no more than 

two per organization. Exceptions to this 

limit may occur, should space allow. 

Participants planning to attend are 

responsible for their own travel 

arrangements. Please use the following 

http://www.justnet.org/Pages/ 

RecordView.aspx?itemid=2396 to see an 

agenda and obtain the registration form 

to attend the Workshop. You will 

receive a response to your request 

within 2 business days. 

DATES: The meeting will be held from 

8 a.m. to 3 p.m. 

ADDRESSES: Westin Annapolis Hotel, 

100 Westgate Circle, Annapolis, MD 

21401. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer O’Connor, by telephone at 202– 

307–0070 [Note: this is not a toll-free 

telephone number], or by e-mail at 

Jennifer.O’Connor@usdoj.gov. 

Kristina Rose, 

Acting Director, National Institute of Justice. 

[FR Doc. 2010–10922 Filed 5–7–10; 8:45 am] 

BILLING CODE 4410–18–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Submission for OMB Review: 

Comment Request 

May 5, 2010. 

The Department of Labor (DOL) 

hereby announces the submission of the 

following public information collection 

request (ICR) to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995 

(Pub. L. 104–13, 44 U.S.C. chapter 35). 

A copy of this ICR, with applicable 

supporting documentation; including 

among other things a description of the 

likely respondents, proposed frequency 

of response, and estimated total burden 

may be obtained from the RegInfo.gov 

Web site at http://www.reginfo.gov/ 

public/do/PRAMain or by contacting 

Darrin A. King on 202–693–4129 (this is 

not a toll-free number)/e-mail: 

DOL_PRA_PUBLIC@dol.gov. 

Interested parties are encouraged to 

send comments to the Office of 

Information and Regulatory Affairs, 

Attn: OMB Desk Officer for the 

Department of Labor—Wage and Hour 

Division (WHD), Office of Management 

and Budget, Room 10235, Washington, 

DC 20503, Telephone: 202–395–7316/ 

Fax: 202–395–5806 (these are not tollfree numbers), E-mail: 

OIRA_submission@omb.eop.gov within 

30 days from the date of this publication 

in the Federal Register. In order to 

ensure the appropriate consideration, 

comments should reference the OMB 

Control Number (see below). 

The OMB is particularly interested in 

comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Agency: Wage and Hour Division. 

Type of Review: Extension and 

Revision of a currently approved 

collection. 

Title of Collection: Records to be kept 

by Employers—Fair Labor Standards 

Act. 

OMB Control Number: 1235–0018. 

Affected Public: Private Sector 

(Business or other for-profits, Not-forprofit institutions, and Farms); State, 

Local, or Tribal Governments; and 

Individuals or Households. 

Total Estimated Number of 

Respondents: 3,486,025. 

Total Estimated Annual Burden 

Hours: 853,924. 

Total Estimated Annual Costs Burden 

(does not include hourly wage costs): $0. 

Description: Employers respond to 

these information collections to 

document compliance with the Fair 

Labor Standards Act, 29 U.S.C. 201, et 

seq. For additional information, see 

related notice published in the Federal 

Register on December 23, 2009 (74 FR 

68284). 

Darrin A. King, 

Departmental Clearance Officer. 

[FR Doc. 2010–10982 Filed 5–7–10; 8:45 am] 

BILLING CODE 4510–27–P 


jlentini on DSKJ8SOYB1PROD with NOTICES

B-4
APPENDIX C 

HEARING PARTICIPANTS

C-3 

CALENDAR OF PUBLIC HEARING 

Those listed below appeared as witnesses at the United States International Trade Commission’s 

hearing: 

 Subject: China: Intellectual Property Infringement, Indigenous Innovation 

Policies, and Frameworks for Measuring the Effects on the U.S. 

Economy 

 and

 China: Effects of Intellectual Property Infringement and 

 Indigenous Innovation Policies on the U.S. Economy 

 

 Inv. Nos.: 332-514 and 332-519 (respectively) 

 Date and Time: June 15 and 16, 2010 - 9:30 a.m. 

 

 Sessions were in connection with these investigations in the Main Hearing Room (room 101), 

500 E Street, S.W., Washington, D.C. 

Day 1: Tuesday, June 15, 2010

Panel 1:

ORGANIZATION AND WITNESS:

Carnegie Mellon University 

Pittsburgh, PA 

 Professor Lee G. Branstetter, Associate Professor 

 of Economics and Public Policy 

Harvard Business School 

Boston, MA 

 

 Professor C. Fritz Foley, Associate Professor 

International Intellectual Property Institute 

Washington, D.C. 

 Bruce A. Lehman, Chairman and President 

The Ohio State University 

Moritz College of Law 

Columbus, OH 

 Professor Daniel C.K. Chow, Joseph S. Platt-Porter 

 Wright Morris & Arthur Professor of Law
C-4 

Panel 1 (continued):

ORGANIZATION AND WITNESS:

Drake University Law School 

Intellectual Property Law Center 

Des Moines, IA 

 Professor Peter K. Yu, Kern Family Chair in 

 Intellectual Property Law 

Emergency Committee for American Trade 

Washington, D.C. 

 Calman Cohen, President 

Panel 2:

ORGANIZATION AND WITNESS:

U.S. Chamber of Commerce 

Washington, D.C. 

 Jeremie Waterman, Senior Director, Greater China 

American Chamber of Commerce 

People’s Republic of China 

Beijing, China 

 Christian Murck, President 

National Association of Manufacturers 

Washington, D.C. 

 Shaun Donnelly, Senior Director, International 

 Business Policy 

Business Software Alliance 

Washington, D.C. 

 Robert W. Holleyman, II, President and CEO 

IDC 

Framingham, MA 

 John Gantz, Chief Research Officer 
C-5 

Panel 2 (continued):

ORGANIZATION AND WITNESS:

Information Technology Industry Council 

Washington, D.C. 

 and

Software & Information Industry Association 

Washington, D.C. 

 John Neuffer, Vice President for Global Policy, 

 Information Technology Industry Council 

 Mark Bohannon, General Counsel and Senior Vice 

 President, Public Policy, Software & Information 

 Industry Association 

Day 2: Wednesday, June 16, 2010

Panel 3

ORGANIZATION AND WITNESS:

D’Addario & Company, Inc. 

Farmingdale, NY 

 James D’Addario, Chairman and CEO 

PCT Government Relations 

Washington, D.C. 

 

 Chris Israel, Managing Partner 

International Intellectual Property Alliance 

Washington, D.C. 

 Michael Schlesinger, Co-Founder 

U.S. Council of International Business 

Washington, D.C. 

 Stephen Canner, Vice President 

-END-

APPENDIX D 

POSITIONS OF INTERESTED PARTIES

D-3

Summary of Views of Interested Parties 

The Commission held a public hearing in relation to its investigations on intellectual 

property rights (IPR) infringement and indigenous innovation policies in China on June 

15–16, 2010, in Washington, DC. Interested persons were also invited to file written 

submissions for the investigation. This appendix contains a summary of the views 

expressed to the Commission via testimony, written submission, or both, and reflects the 

principal points made by the particular party. The views expressed in the summarized 

materials should be considered to be those of the submitting parties and not the 

Commission. In preparing this summary, Commission staff did not undertake to confirm 

the accuracy of, or otherwise correct, the information summarized. For the full text of 

hearing testimony, written submissions, and exhibits, see entries associated with 

investigation nos. 332-514 and 332-519 at the Commission’s Electronic Docket 

Information System (https://edis.usitc.gov/edis3-internal/app).1

 

Air-Conditioning, Heating, and Refrigeration Institute 

(AHRI)2

In a written submission on behalf of its 300 member companies, AHRI said that it 

supports efforts to increase international compliance with IPR treaties and that China is 

not the only country where violations appear. AHRI explained that it has taken an active 

role to support overall IPR protection, especially at industry trade shows, where, it notes, 

infringement is particularly visible. For example, AHRI noted that after one of its 

members found replicas of his equipment displayed by Chinese distributors at an expo in 

Chicago, AHRI signed a memorandum of understanding (MOU) with five other Chinese 

and American heating, ventilation, air-conditioning, and refrigeration (HVACR) 

associations and exhibition centers to protect IPR. The MOU called for a zero tolerance 

policy for counterfeit products at exhibitions, open communication among all parts of the 

HVACR industry, and U.S.-Chinese industry collaboration for IPR protection. 

As part of its submission, AHRI also included a model letter developed by The 

International Council of Air-Conditioning, Refrigeration, and Heating Manufacturers 

Associations (ICARHMA) for its seven members, including AHRI, to forward to 

expositions and trade shows regarding good practices for IPR protection at these events. 

The recommendations included IPR protection language in exhibitor contracts, a 

no-tolerance policy for infringing items, a response procedure for when infringement is 

alleged, distribution of IPR information at events, and working with HVACR 

associations to share information and address counterfeiting. 

American Apparel & Footwear Association (AAFA)3

In a written submission to the Commission, Kevin M. Burke, president and CEO of 

AAFA, cited statistics from the U.S. Customs and Border Protection estimating that 

 1

 Note that page numbers for exhibits are not precise because the exhibits volume is not paginated 

sequentially, the page numbers are those given by the Adobe PDF software. 2

 Written submission to the USITC, June 22, 2010. 3

 Written submission to the USITC, July 8, 2010. For more information about AAFA and its 

representation, please see www.apparelandfootwear.org. 
D-4

48 percent of IPR-infringing footwear entering the United States is from China. The IPRinfringing footwear, he added, was worth about $98 million in 2009. Mr. Burke wrote 

that infringements mainly appear as trademark violations, explaining that AAFA believes 

it is easier to illegally reproduce trademarks than to recreate complicated patented 

production. Mr. Burke also noted that AAFA members have reported uneven law 

enforcement against these IP violators across China, as well as ineffective Chinese 

government prevention measures. Direct sales of IPR-infringing footwear to consumers 

via the Internet are a major problem for the industry, according to Mr. Burke, and can be 

seen as reducing employment at legitimate sales sites, reducing company revenue and 

government tax collection, and hurting brand reputations. Mr. Burke concluded by noting 

that AAFA member companies have not seen any direct impact from China’s indigenous 

innovation policies but they will continue to monitor the situation. 

 

American Chamber of Commerce in China (AmChamChina)4

Mr. Christian Murck, president of AmCham-China, said that the organization has a 

membership of over 1,200 U.S. companies operating in China. In his testimony, he 

summarized member companies’ concerns about the ongoing problems that 

counterfeiting and IPR infringement have posed for U.S. business in China. He said that 

continued pressure on China to improve IPR protection has had results, as evidenced by 

the comprehensive Chinese IPR legislation that now exists. However, he said that 

AmCham-China’s most recent Business Climate Survey indicates that businesses still 

consider IPR enforcement in China to be weak and ineffective. In its prehearing 

submission, AmCham-China said that the Chinese government occasionally appears to 

purposely pursue policies that weaken IPR. 

Mr. Murck stated that the appearance of indigenous innovation policies has concerned 

AmCham-China even more. He said that although the Chinese government has since 

modified some of its original indigenous innovation proposals regarding IPR nationality 

requirements, its continued intent to develop a catalogue of certified indigenous 

innovation products is worrisome. Besides indigenous innovation, he listed several other 

policies he considered aimed at protecting domestic Chinese companies, including 

Chinese government procurement measures, the backing of Chinese “famous brands,” the 

development of unique Chinese technology standards incompatible with world standards, 

potentially larger compulsory licensing requirements for patent holders, and patent 

infringement exemptions. 

Lee Branstetter, Associate Professor of Public Policy and 

Economics, Carnegie Mellon University5

In hearing testimony presented to the Commission, Professor Branstetter expressed the 

view that China’s poor record of enforcing its own domestic IP legislation has resulted in 

possibly billions of dollars in losses to U.S. firms, including lower profits and licensing 

revenues. Based on his joint IPR research with Fritz Foley, Ray Fisman, and Kamal 

 4

 USITC, hearing transcript, June 15, 2010, 177–184; written testimony to the USITC, June 15, 2010; 

written submission to the USITC, June 3, 2010. For more information about AmCham-China, please see 

http://www.amchamchina.org/. 5

 USITC, hearing transcript and exhibits, June 15, 2010, 8–18 and 8-12, respectively. 
D-5

Saggi, Professor Branstetter also stated that the export of IPR-sensitive U.S. products to 

China has been lower than if China’s IPR enforcement were better. Professor Branstetter 

said that not only has this harmed U.S. firms, but he is convinced that China has been 

injured as well. 

Professor Branstetter said that China has begun to improve in some areas of IPR 

enforcement, particularly for patents. He cited a large increase in Chinese domestic utility 

model patents, more international patents filed by Chinese companies, and a national 

increase in Chinese IPR litigation. 

Professor Branstetter stated that the U.S. government’s ability to influence Chinese 

institutions is limited and that China’s World Trade Organization (WTO) membership 

prevents the use of consequential economic sanctions to influence Chinese policy. He 

added that attempts by the United States to use the WTO dispute settlement process to 

bring cases against China have had mixed results: the United States was mostly 

unsuccessful in its copyright case due to insufficient evidence, but successful in its case 

regarding Chinese national policies inequitably favoring Chinese semiconductor and auto 

parts manufacturers. 

Professor Branstetter said that the scope and number of China’s indigenous innovation 

policies are so large that measurement of their potential effects on U.S. firms in a study 

will be difficult, especially since many of the policies do not break any international trade 

laws and may possibly benefit U.S. companies. Finally, he said that although China’s 

indigenous innovation policies may exclude foreign firms from qualifying for Chinese 

government procurement contracts, more recent Chinese guidelines and his own contacts 

indicate that the final legislation will not be as discriminatory. 

Business Software Alliance (BSA)6

 

Mr. Robert W. Holleyman, II, president and CEO of the software company association 

BSA, said that BSA represents the global software industry and its hardware partners. In 

his testimony before the Commission, he described the software industry’s particular 

difficulties attributed to China’s lax IPR enforcement. According to Mr. Holleyman, the 

PC software industry is dependent upon trade; recent estimates put the legitimate 

market’s worth at $76 billion, 60 percent of which is U.S. receipts. However, he noted 

that estimates indicate that illegal copying, including the use of unlicensed software by 

state-owned enterprises, has greatly reduced software sales to China. He cited findings by 

the market research firm International Data Corporation that 79 percent of software 

installed in China during 2009 was unlicensed, representing a total value of $7.6 billion, 

$3.4 billion of which was U.S.-developed software. Mr. Holleyman also expressed 

concern that the adoption of indigenous innovation policies may completely exclude U.S. 

software firms from the Chinese market. 

In terms of the broader U.S. economy, Mr. Holleyman noted there were a number of 

negative consequences of this illegal software use. First, considering these numbers as 

losses to the industry, he said they can also be viewed as lost employment opportunities 

and harmful to future innovation, as firms have fewer investment resources. Further, he 

said, illegal software use can also be seen as subsidizing the Chinese industry because lax 

 6

 USITC, hearing transcript, June 15, 2010, 193–99; written testimony to the USITC, June 15, 2010. For 

more information about BSA and its membership, please see www.bsa.org. 
D-6

IPR enforcement allows them to obtain software at lower cost than U.S. and other 

competitors who must purchase legal software. Mr. Holleyman said that the latter effect 

is of particular concern since IP-intensive industries are typically high-tech industries in 

which the United States has a comparative advantage. 

With respect to China’s indigenous innovation policies, Mr. Holleyman expressed 

concern that the Chinese government would continue trying to develop policies that 

exclude foreign software from the market and force transfers of technology to Chinese 

entities. As it stands, he said, the indigenous innovation catalogue already includes 

software requirements that could exclude U.S. software from Chinese government 

procurement. 

Daniel C.K. Chow, Professor, Ohio State University 

College of Law7

In hearing testimony to the Commission, Professor Chow gave his view of China’s 

counterfeit trade and estimated that trade at $19–24 billion annually. Professor Chow 

described the counterfeit industry as consisting of two parts: the first is manufacturing, 

located in the southern Guangdong and Fujian provinces and often having criminal 

connections to Hong Kong and Taiwan, respectively; the second is distribution, located in 

cities along the coast and in Wulumqi on the northwestern border. 

He said that millions of Chinese people make their livelihoods from counterfeiting, and 

cited in particular activities in Yiwu city, in Zhejiang Province. He said that Yiwu’s 

economy is largely based on trade in counterfeit goods and that the activity results in 24-

hour-a-day road congestion as goods are shipped to and from the city. He also said the 

counterfeit industry is endorsed by the local Yiwu government, which receives tax 

revenue both from the wholesalers and infrastructure businesses associated with the 

market, such as restaurant and hotel owners. He said that, given the importance of the 

counterfeiting industry to the area and other comparable locations, the Chinese 

government may be concerned that abrupt counterfeiting suppression could result in 

social disruption. 

Professor Chow also expressed the opinion that multinational companies located in China 

have been too focused on administrative enforcement as a means to deal with the 

counterfeit industry. He said that although the number of lawsuits and raids against 

counterfeiters has increased dramatically, they have been ineffective, largely because 

court and administrative rulings are unpredictable, the fines imposed are inconsequential, 

and the raids may actually increase output, as counterfeiters factor seizures into their 

production planning. Finally, he expressed the view that the estimation methods used by 

companies to approximate losses from counterfeiting are flawed. In his opinion, the idea 

that a recovered counterfeit item is equivalent to a recovered sale is not always correct, 

especially since the item is often destined for markets where the authentic product is not 

available.8

 7

 USITC, hearing transcript and exhibits, June 15, 2010, 32–41; hearing transcripts, 126; exhibits, 54–68. 8

 USITC, hearing transcript, June 15, 2010, 112. 
D-7

D’Addario & Company (D’Addario)9

 

In written and oral testimony to the Commission, Mr. James D’Addario, chairman and 

CEO of D’Addario & Company, described how his musical instrument string 

manufacturing business has been impacted by Chinese counterfeiting. He noted that the 

company began operations in New York State in 1905 and still maintains 90 percent of 

its manufacturing in the United States. 

 

Mr. D’Addario recounted the company’s recent history selling in China, beginning with 

indirect shipments to China through Hong Kong and followed by direct exports after 

2001. He stated that, in 2004, D’Addario’s trademark was not properly registered in 

China because of a filing error, and a counterfeiting competitor registered the D’Addario 

trademark as his own to package an inferior product. He said that D’Addario has recently 

recovered its brand name after a protracted legal battle, winning the case based on prior 

use10 as well as the competitor’s labeling of packages with “Made and Printed in the 

USA.”11

 

Mr. D’Addario said that this was not the only counterfeiting problem D’Addario has had 

in China. He said that based on his company’s research, 70 percent of the strings labeled 

as D’Addario in China are counterfeit. He stated that an even greater concern is that these 

counterfeit products are now making their way onto international markets, particularly 

through online auction sites, which has damaged their brand reputation. 

To combat this problem, Mr. D’Addario said that two raids in China on Kim Byeng 

Sam’s firm and another counterfeiter, Bright Strings, have been conducted on 

D’Addario’s behalf. However, he expressed concern about the high cost of these raids, 

their limited results, and the insignificant penalties imposed on IP violators by Chinese 

law. He also stated that D’Addario has spent more than $200,000 on an ongoing program 

called “Play Real” that embeds unique serial numbers on each set of strings to allow 

consumers to verify whether their product is genuine or not. He added that the company 

has implemented a new Chinese pricing program to make its strings more competitive 

against counterfeit products and to curb counterfeit sales within China. He said that 

unfortunately this has made it more difficult for Chinese consumers to determine which 

string set is the real product because salespersons used to know, and offer, the genuine 

item based on the price difference. 

Emergency Committee for American Trade (ECAT)12

 

In hearing testimony presented to the Commission, Mr. Calman J. Cohen, president of 

ECAT, said that his organization is a U.S. business association with global operations 

representing members from all major U.S. sectors. He said that the general business 

opinion is that China represents a huge potential market that has been working towards 

 9

 USITC, hearing transcript and exhibits, June 16, 2010; hearing transcript, 328–37; exhibits, 120–49, 

also, written submissions to the USITC, May 24, 2010; June 16, 2010; June 21, 2010. Also of note, 

Congressman Steve Israel, 2nd district, New York, wrote to the Commission on behalf of D’Addario for the 

company’s inclusion in the June 15th hearing. For more information about D’Addario, please see 

http://www.daddario.com/DaddarioHome.Page?ActiveID=1740. 10 USITC, hearing transcript, June16, 2010, 374. 11 USITC, hearing transcript, June16, 2010, 450. 12 USITC, hearing transcript, June 15, 2010, 51–59; written submission to the USITC, June 22, 2010. For 

more information about ECAT, please see http://www.ecattrade.com/. 
D-8

liberalization, but said that some Chinese policies, such as indigenous innovation, have 

countered this progress towards opening the nation’s economy. He expressed concern 

that certain of the policies may be especially challenging for U.S.-Chinese trade relations 

because of the never-before-used government procurement condition that the intellectual 

property (IP) of a government purchase must be owned by a domestic entity. Although 

the Chinese, he said, have made modifications to the original indigenous innovation 

policies, he said in his post-hearing submission that it is still unclear if products already 

licensed for use in China by foreign-owned firms would qualify and that trademark 

ownership requirements have not been clarified. 

According to Mr. Cohen, indigenous innovation policies pose additional concerns, as 

they may be implicitly followed by both the private and public sector, whether 

implemented into law or not. Mr. Cohen also said that U.S. access to Chinese government 

procurement is already limited due to China’s ongoing delay in joining the WTO 

Government Procurement Agreement, in spite of their 2001 accession commitment. 

According to Mr. Cohen, had China joined this agreement, nondiscriminatory treatment 

of foreign suppliers would already be required in Chinese government procurement. 

Mr. Cohen also noted problems with China’s IPR protection, and said that part of the IPR 

problem results from China’s market restrictions. These restrictions, he said, limit the 

importation of legitimate products, and that this incentivizes counterfeit products. He 

cited as examples the annual limit (20) on foreign films and the restriction on printing 

and distribution by foreign publishers. From his perspective, this has negative 

consequences for the entire U.S. economy, from lower U.S. industry revenue and U.S. tax 

payments to unfair Chinese cost advantages gained from using free, unlicensed products. 

C. Fritz Foley, Associate Professor, Harvard Business School 

and Faculty Research Fellow, National Bureau of Economic 

Research13

In testimony at the Commission’s hearing, Professor Foley outlined the three principal 

ways IPR violations in China, in his view, affect the U.S. economy: (1) through 

international trade flows; (2) via cross-border royalty flows; and (3) in foreign direct 

investment (FDI). 

 

For international trade, Professor Foley stated there is evidence that U.S. exports are 

lower to nations with poor IPR enforcement, but only when those nations have the 

capacity to imitate products. Professor Foley also cited a study that shows large export 

increases to countries reforming their IPR legislation. He said that these effects are the 

result of U.S. companies’ reluctance to sell original products in a nation with no IPR 

protection. Another way Professor Foley noted that international trade could be affected 

by IP violations was if Chinese imitations entered the U.S. market on a large scale. He 

said that in his view, actual occurrences of this are relatively insignificant, compared to 

the import value of genuine articles. 

With regard to cross-border royalty flows, Professor Foley said that although U.S. 

licensing fee receipts from IP are relatively small compared to total exports, they 

 13 USITC, hearing transcript, June 15, 2010, 18–26; written testimony to the USITC, June 15, 2010. 
D-9

represent high profit margins for businesses. Professor Foley also cited the possibility of 

lower inter- and intra-company technology transfers to foreign firms or branches based in 

countries with weak IPR protection. In the case of inter-company technology transfers, he 

said, firms are concerned that once a licensee receives their technology, they will no 

longer have any incentive to continue to pay a user fee because IPR are not enforced. For 

intra-company transfers of information he noted the possibility that an employee will 

transfer “sensitive business information” to a competitor if there is no penalty for doing 

so. Professor Foley expressed the view that this second possibility was particularly 

relevant for U.S.-Chinese business relations, and predicted that stronger IPR protection in 

China would likely increase the amount U.S. firms earn from technology transfers. 

Professor Foley concluded with some observations on the effects of IPR on FDI. He 

noted that past analyses have been concerned that stricter IPR enforcement could increase 

production in more developed countries with better IPR protection, thereby lowering 

global welfare. However, Professor Foley said that this analysis does not take into 

account the possibility that a firm headquartered in a developed nation might choose to 

take advantage of lower costs in a developing nation for manufacturing only if the 

nation’s IPR protection was sufficient. He said that FDI in low-labor-cost nations could 

free resources for innovation in developed nations, and said that he has found some 

evidence to support this theory. Finally, Professor Foley asserted that FDI does not 

necessarily increase investment in foreign firms at the expense of U.S. firms. He said that 

this is particularly true when considering China and the United States, where businesses 

are more often counterparts than rivals. 

Harkins Cunningham LLP14

In written testimony to the Commission, Mr. Ehrenhaft, senior counsel at the law firm 

Harkins Cunningham, LLP, provided his views relating to the role of lawyers in 

protecting IPR within, and coming from, China. According to Mr. Ehrenhaft, U.S. laws 

limiting how foreign nationals may appear before the U.S. Patent and Trademark Office 

(USPTO) have led to similar policies by other nations, thereby disadvantaging U.S. 

patentees. Based on indications by other countries, Mr. Ehrenhaft wrote that he believes 

this situation could be alleviated if the United States were to move first and change 

legislation to allow “non-immigrant” foreign lawyers to represent clients before the 

USPTO. If China were then to do the same, U.S. companies could obtain more assistance 

in the Chinese patent application process. 

Mr. Ehrenhaft stated that U.S. lawyers face other problems in China, such as Chinese 

laws restricting U.S. firms from opening more than one office and also requiring U.S. 

lawyers to forfeit their local bar admission in order to work in China. In his view, the 

latter is especially discriminatory, considering that Chinese lawyers admitted to the bar in 

the United States often return to China and advertise themselves as U.S. lawyers. Finally, 

Mr. Ehrenhaft expressed concern that Chinese practice inhibits the use of standard 

arbitration clauses in international transactions. 

 14 Written submission to the USITC, June 14, 2010. For information on Harkins Cunningham LLP, 

please see http://www.harkinscunningham.com/. 
D-10

Information Technology Industry Council (ITI)15

 

In hearing testimony, Mr. John Neuffer stated that he is ITI’s vice president for global 

policy and a representative of the information and communications technology industry. 

He said that China is a particularly important export destination for ITI’s member 

companies and the United States as a whole.16 He said that if the United States is to 

achieve President Obama’s goal of doubling exports in five years, a fair and open trading 

system will have to be developed in China. 

 

Mr. Neuffer said that ITI is not against China’s desire to pursue innovation, but is 

concerned that China’s indigenous innovation policies will create market access 

problems, especially in regard to the development of a product catalogue for Chinese 

government procurement. According to Mr. Neuffer, considering that China’s Ministry of 

Finance reported 2008 government spending at $88 billion, this is a significant market in 

which, in his view, a product catalogue might exclude U.S. businesses. 

Besides the catalogue, Mr. Neuffer also mentioned his concern with China’s push to 

create country-specific standards which, he said, especially discriminate against foreign 

firms developing products based on international standards. He stated that China has 

already developed a unique wireless standard, WLAN Authentication and Privacy 

Infrastructure (WAPI), which, although technically optional, has become the Chinese 

norm; the standard forces international firms to reconfigure products made to 

internationally recognized standards in order to be compatible. According to Mr. Neuffer, 

China may be moving in a similar direction with PCs and servers. 

Mr. Neuffer remarked that in addition to the above-mentioned problems, foreign 

companies also often face “unnecessary,” and sometimes overlapping, regulations. These 

regulations include burdensome testing and certifications, and sometimes even require 

the disclosure of sensitive business information. 

Intellectual Property Owners Association (IPO)17

In a written submission, IPO said that its membership consists of over 200 companies and 

11,000 individuals who own technology-related IP. IPO expressed concern that China’s 

indigenous innovation policy may limit the rights of IP holders based on their nationality, 

particularly for Chinese government procurement. IPO stated that it is concerned about 

the proposed indigenous innovation product catalogue for Chinese government 

procurement, covering six important technology areas: computer devices, 

telecommunications, office appliances, software, alternative-energy products, and 

energy-efficient products. Although IPO noted that the original Chinese product 

accreditation standards for qualification have been relaxed, a company still must meet the 

 15 USITC, hearing transcript and exhibits, June 15, 2010, 205–11, 24–34, respectively; written testimony 

to the USITC, June 15, 2010. For more information about ITI, please see 

http://www.itic.org/index.php?submenu=who&submenu=who&src=gendocs&ref=WHOWEARE&category=

Main. 

16 During the hearing, Mr. John Neuffer shared his allocated time with ITI’s fellow member of the United 

States Information Technology Office (USITO) in Beijing, the Software and Information Industry 

Association. A summary of the testimony of the Software and Information Industry Association appears later 

in this appendix (arranged alphabetically). 17 Written submission to the USITC, July 9, 2010. For more information about IPO, please see 

http://www.ipo.org//AM/Template.cfm?Section=Home. 
D-11

following six criteria: (1) products must meet Chinese regulations; (2) the applicant must 

have full IP rights with no dispute; (3) the applicant must have exclusive trademark 

rights; (4) the products must be technologically advanced; (5) the product must be of 

reliable quality; and (6) the product should have profit potential. IPO said that it is 

apprehensive about the vagueness of criteria 1, 2, 4, and 6 because no precise regulations 

are specified for the first criterion and key terms such as “dispute,” “advanced,” and 

“profit potential,” are undefined in the second, fourth and sixth criteria. 

International Data Corporation (IDC)18

 

In hearing testimony, Mr. John Gantz, the chief research officer of IDC, said that IDC is 

an international computer industry research firm with analysts around the world. He said 

that IDC’s clients range from large private computer companies and U.S. government 

agencies to small end users of technology. He said that IDC was very involved in the 

work done for BSA in 2003 to investigate worldwide PC software piracy. The IDC study 

examined the difference between shipped and sold legitimate software and the amount of 

software that would have needed to be installed in 110 countries based on PC sales. The 

study found that in 2009, 79 percent of the software in China, the second largest PC 

market in the world, was illegal, while only 20 percent of software installed in the United 

States was illegal. Mr. Gantz noted that IDC’s most recent study valued all pirated 

software at $7.6 billion, a value that IDC has argued in the past can be considered direct 

industry loss. 

 

Besides software vendor losses, Mr. Gantz described how losses from pirated software 

are not limited to the legitimate industry but accrue throughout the economy. According 

to Mr. Gantz, although the software services sector is the most directly affected, piracy 

ultimately leads to lost tax revenue and reductions in job creation and employment. Mr. 

Gantz cited projected gains in tax revenue and job creation identified in another recent 

IDC study analyzing the effect of a 10 percent reduction in piracy rates in China and 

Russia. Mr. Gantz added that, the IDC projection underestimated the actual gains in the 

two countries.19

The International Imaging Technology Council (Int’l ITC)20

 

Tricia Judge, Executive Director of the Int’l ITC, provided a written submission that 

includes a report addressing how its members have been affected by Chinese IPR 

infringement. The report states that the Int’l ITC is a non-profit association representing 

approximately 2,500 North American ink jet and toner cartridge remanufacturers. The 

report states that Chinese companies are infringing on legitimate remanufacturing 

business by producing new cartridges in violation of original manufacturer IPR and then 

marketing them as both new and remanufactured products. The report says that these 

sales, facilitated by the Internet, have undercut the North American industry. 

 

The report also states that when the infringing cartridges are imported into the United 

States and then returned empty to remanufacturers, the remanufacturers are open to 

 18 USITC, hearing transcript, June 15, 2010, 199–205. For more information about IDC, please see 

http://www.idc.com. 19 USITC, hearing transcript, June 15, 2010, 219. 

20 Written submission to the USITC, July 7, 2010. For more information about the Int’l ITC, please see 

http://www.i-itc.org. 
D-12

potential lawsuits by original manufacturers. The report states that the Int’l ITC is 

increasingly concerned that its environmentally-friendly, labor-intensive recycling 

business is threatened by the growing number of illegal Chinese products. 

International Intellectual Property Alliance (IIPA)21

 

In testimony at the Commission’s hearing, Mr. Michael Schlesinger, co-founder of 

IIPA,22 expressed the view that some proposed Chinese domestic innovation policies will 

not only be ineffective, but will also obstruct market access for U.S. businesses. He stated 

that a more effective method of enhancing national innovative efforts would be for China 

to effectively enforce its IPR legislation and implement international market access 

obligations. 

Mr. Schlesinger estimated the cost to U.S. companies of copyright infringement in China 

at $18–20 billion per year. He stated that IIPA’s 2009 study, “Copyright Industries in the 

U.S. Economy: The 2003–2007 Report,” included in IIPA’s post-hearing submission, 

shows that core U.S. copyright industries accounted for a significant percentage of both 

U.S. gross domestic product and total economic growth. 

 

Mr. Schlesinger said that technology, particularly the Internet and mobile phones, is 

aiding the distribution of copyright-infringing products, and estimated that 99 percent of 

the music downloaded in China is illegal. He said that enforcement has been mixed, and 

noted by way of example that whereas in August 2009 the operators of the Tomato 

Garden Web site, tomatolei.com, were criminally convicted in China for providing free 

downloads of Windows XP, no charges have been made against Kangjian Shixun, a wellknown paid subscription-based site that provides unlicensed electronic copies of 

scientific journal articles. Mr. Schlesinger also listed other types of general copyright 

infringement prevalent in China, including end-user piracy of business software, optical 

disc infringement, hard-disk loading infringement, published material infringement, and 

illegal camcording of movies. He also described problems that contribute to 

infringement, including Chinese Internet cafés that do not prevent access to copyrightinfringing online content, and cited insufficient compensation for the use of copyrighted 

music on television. Mr. Schlesinger stated that IIPA is also concerned about the market 

access problems generated by foreign film and television broadcast quotas, the Chinese 

censorship system, and now, possibly, by indigenous innovation policies. 

Finally, he suggested the Commission consider all forms of infringement in the study, 

especially infringement via the Internet; the effects of infringement on the entire U.S. 

economy and not just the copyright holder; and the impact of market access restrictions in 

China. For supplemental detail, IIPA included in its written submission its 2010 Special 

301 Report, with recommendations to the USTR on China. 

 21 USITC, hearing transcript, June 16, 2010, 345–54; written testimony to the USITC, June 3, 2010; 

written submission to the USITC, July 9, 2010. 22 IIPA is a coalition of seven trade associations representing the U.S. copyright industries. These 

associations are: the Association of American Publishers, the Business Software Alliance, the Entertainment 

Software Association, the Independent Film & Television Alliance, the Motion Picture Association of 

America, the National Music Publishers’ Association, and the Recording Industry Association of America. 

According to IIPA, their members represent over 1,900 companies producing and distributing copyrightprotected materials. For more information about IIPA, please see http://www.iipa.com. 
D-13

International Intellectual Property Institute (IIPI)23

In testimony at the Commission’s hearing, Mr. Bruce A. Lehman said that he is the 

founder of the nonprofit think tank IIPI, which is devoted to helping developing countries 

understand and use IPR to their advantage. Mr. Lehman provided views regarding current 

U.S.-China trade relations and also recounted his experiences during the 1990s as 

Assistant Secretary of Commerce and Commissioner of Patents and Trademarks under 

the Clinton Administration. 

Mr. Lehman said that the U.S.-China trade relationship has not fulfilled the expectations 

developed in the course of negotiating the 1999 bilateral agreement. He said it was hoped 

at the time that, by facilitating trade with China, the United States would benefit from 

exporting its technology, while China would profit from its relatively low labor costs. 

According to Mr. Lehman, the lack of protection and recognition for the value of 

intangible U.S. IP exports has contributed to a growing trade imbalance between the two 

nations as American firms receive less than full value for their exports. Mr. Lehman said 

that this same level of imbalance is not seen in the trading relationship between the 

United States and other advanced economies with strong IPR protection that fully 

recognizes U.S. export value.24

Mr. Lehman said that although China has improved some aspects of its domestic IPR 

protection, copyright piracy is still rampant. He also expressed concern that China has 

restricted market access for U.S. technology and information exports through 

internationally incompatible technology standards, government procurement 

requirements, and Internet censorship. In addition, he cited the increased use of utility 

model patents that do not require examination of prior art, saying that this practice has 

been found to occasionally exclude original developers of a product from obtaining full 

patent protection in China. He concluded by saying that although China will likely have a 

strong IPR protection regime in the future, it may not be soon enough for U.S. companies 

to benefit. 

The Law Offices of Stewart and Stewart25

In a written submission, the law firm of Stewart and Stewart described the types of IPR 

violations in China and the extensive problems they pose for businesses and consumers 

throughout the world. The firm said that, although no country has perfect IPR protection, 

in recent years China has been the largest problem country, with complicating factors 

such as Chinese provincial governments’ disregard of central government efforts to 

improve enforcement. 

The firm said that counterfeit products are infiltrating all industry sectors and global 

regions, boosted by less-regulated Internet sales. The firm said that the costs to 

U.S. businesses from counterfeiting go beyond lost business revenue because counterfeit 

goods typically use inferior materials and production methods. These costs include 

warranty costs for servicing illegitimate products, recall costs to remove dangerous 

 23 USITC, hearing transcript, June 15, 2010, 26–32; written testimony to the USITC, June 15, 2010. For 

more information about IIPI, please see http://iipi.org. 24 USITC, hearing transcript, June 15, 2010, 79. 

25 Written submission to the USITC, July 8, 2010. For information on The Law Offices of Stewart and 

Stewart, please see http://www.stewartlaw.com/stewartandstewart. 
D-14

counterfeit products and preserve brand reputations, and national security threats as fake 

and inferior items are even accidentally purchased by the U.S. military. Stewart and 

Stewart noted that some of these costs are not quantifiable, but in the interest of the study 

they believe it could be useful to survey industries to gather information on warranty cost 

increases, spending for brand protection, and product recall costs. 

The firm also described China’s indigenous innovation policies, particularly those 

relating to government procurement, and said that although these policies are not 

prohibited by China’s current WTO obligations, they would be if China fulfilled its 2001 

accession commitment to become a member of the Government Procurement Agreement. 

The firm added that while changes in April 2010 to the indigenous innovation policies 

have eased some worries, it remains concerned about how the policy will be applied 

across all three levels (national, provincial, and local) of the Chinese government. 

Philip I. Levy, Resident Scholar, American Enterprise 

Institute26

In a written submission to the Commission, Dr. Philip Levy expressed the view that it 

might prove useful for the study to take a comparative statics approach, i.e., comparing 

economic outcomes under various Chinese IPR scenarios. He also suggested separating 

the problem of U.S. IP appropriation in China into two categories: unauthorized and 

authorized. He said that under his analysis, unauthorized IP appropriation, such as street 

vendor sales of knockoff items or illegally copied DVDs, is a question of demand 

elasticity—in other words, that certain consumers value genuine products, while others 

are price-dependent. He said that it is unrealistic in his view to quantify IPR violations 

based on total demand and the legitimate item’s current price, because a business with 

market power is likely to set a lower price to capture more sales when they perceive 

demand elasticity. He also said that there are questions surrounding the appropriate level 

of enforcement against unauthorized IP violations. Citing the WTO TRIPS annex, Dr. 

Levy stated that there are acknowledged differences in enforcement levels dependent on 

country development and resource limitations, increasing the options for the scenario to 

use in analyzing Chinese IPR enforcement. Options he proposed were complete 

enforcement, which he felt was idealistic; enforcement on a par with best-practice 

countries or comparably developed countries, which he noted is an ongoing debate; or 

enforcement on a par with the best-protected Chinese goods. 

According to Dr. Levy, authorized IP violations are Chinese government requirements 

that foreign firms reveal certain information to do business in China, which is a matter 

that is at issue in China’s indigenous innovation policies. He said that he views the 

problem as one of rent sharing, where foreign businesses and the Chinese government 

must come to an agreement on how firm revenue will be divided. For purposes of the 

Commission’s study, Dr. Levy said that damage to U.S. businesses could be quantified as 

the difference in profit between a scenario with and without these government 

requirements. 

 26 Written submission to the USITC, July 8, 2010. 
D-15

Motorcycle Industry Council (MIC)27

In a written submission, the Motorcycle Industry Council (MIC) said that it is a not-forprofit national industry association with more than 250 members from all segments of the 

motorcycle and all-terrain vehicle industry. MIC presented the results of an industry 

survey it conducted regarding experienced and perceived IPR violations. MIC said the 

survey was issued after receiving notice of the Commission’s investigation and was based 

on the responses of 53 member companies. MIC said that 94 percent indicated that 

powersports industry members’ IPR had been infringed in China and 96 percent said that 

infringement was significant or modestly important to the industry. The MIC submission 

stated that of the 53 respondents, 40 said they had been personally affected by China IPR 

infringement in all parts of the motorcycle industry, including actual vehicles, their parts, 

outerwear and accessories, and handbooks or training material. MIC said that patent 

violations were the most reported type of infringement, but indicated that everything 

from trade secrets to service marks was mentioned. According to MIC, reported Chinese 

methods for creating the infringing products are diverse, including reverse engineering, 

exact copying of entire products, reproduction with inferior materials, and 

misrepresentation of brands. MIC also reported that members discovered IPR 

infringement in multiple ways, from trade shows to stores to online auction sites. 

Finally, MIC stated that although some members reported that they try to combat IPR 

infringement, such as with “cease-and-desist letters” and faster new product development 

to outpace counterfeits, other members reported doing nothing because of lack of 

knowledge, doubts as to any action’s effectiveness, and cost concerns. MIC suggested 

that, based on this information, education programs, an industry forum, IPR enforcement 

at ports, and better tracking of illegitimate product manufacturers would be helpful to the 

industry. 

National Association of Manufacturers (NAM)28

 

In testimony at the Commission’s hearing, Mr. Shaun Donnelly, NAM’s senior director 

of international business policy, said that NAM is the largest industrial trade association 

in the United States. Mr. Donnelly stated that NAM has long had a subcommittee on IPR, 

but that, with China in mind, NAM appointed an additional task force to investigate 

international IPR problems and their U.S. domestic effects. Mr. Donnelly said that IPR is 

an issue for U.S. manufacturers of every size and in every sector, even for small and 

medium-sized manufacturers that have never exported but find counterfeit versions of 

their product sold internationally. 

With respect to counterfeit goods, Mr. Donnelly identified areas of concern for U.S. 

manufacturers, including lost sales and jobs, investigation and litigation costs in pursuing 

legal action in China, translation and travel expenses, injury to brand reputation by lesser 

quality counterfeit items, and consumer health and safety risks. Additionally, Mr. 

Donnelly noted that prosecution in China is difficult and that rather than facing criminal 

convictions, most offending parties are only assessed an administrative fine. Mr. 

Donnelly expressed the view that more and better coordinated U.S. government 

assistance could alleviate some of these burdens. 

 27 Written submission to the USITC, July 9, 2010. For more on MIC, please see http://www.mic.org. 28 USITC, hearing transcript and exhibits, June 15, 2010, 184–93 and 12–22, respectively; written 

testimony to the USITC, June 15, 2010. For more information about NAM, please see http://www.nam.org. 
D-16

Finally, Mr. Donnelly noted NAM’s concern about China’s indigenous innovation 

policies, as well as its desire for China to fulfill its WTO accession commitments by 

signing the Government Procurement Agreement. 

PCT Government Relations, LLC29

 

In hearing testimony, Mr. Chris Israel, managing partner of PCT Government Relations 

LLC, described damage done and the increasing danger posed by weak and unpredictable 

IPR enforcement in China. Mr. Israel said that he recognized and expressed appreciation 

for unilateral actions taken by U.S. officials working to prevent counterfeit imports, and 

noted bilateral U.S.-Chinese efforts, such as U.S. and Chinese officials working together 

for joint criminal prosecution and the recently signed memorandum of understanding on 

patent cooperation. 

He said that other effective measures taken by the U.S. government include meetings of 

the U.S.-China Joint Commission on Commerce and Trade and the U.S.-China Strategic 

and Economic Dialogue. Mr. Israel also said that U.S. trade tools, such as USTR’s 

Special 301 Report and a 2006 WTO dispute settlement case against China, have also 

been relatively effective. For the future, he suggested that the United States continue to 

pressure China to sign the WTO Government Procurement Agreement and emphasize the 

importance of Chinese law enforcement and of U.S. customs cooperation with China. 

On the whole, he said, the United States is “treading water” as opposed to moving 

forward with regard to changes in Chinese policy. Mr. Israel also expressed the view that 

better coordination within the U.S. Government is necessary to truly combat this 

problem, particularly since policies, such as China’s indigenous innovation policies, are 

only one tool in China’s ongoing experiment to promote domestic innovation. 

Software and Information Industry Association30

 

In testimony at the Commission’s hearing, Mr. Mark Bohannon, general counsel and 

senior vice president of the Software and Information Industry Association (SIIA), 

described the group as the oldest and largest software and digital content association, 

whose members are mainly small and medium-sized software publishers. 31 Mr. 

Bohannon stated that beyond lost employment and industry revenues, there are important 

“social” considerations to be taken into account by the Commission in considering IP 

issues, especially when analyzing pirated software. He said that, in his experience, pirated 

software is much more susceptible to Internet security threats, and that frequently the 

same individuals selling the illegal product are involved in other illegal activity, such as 

identity theft. 

Mr. Bohannon also said that it was important to keep in mind that the IPR discussion has 

changed from its previous enforcement focus to broader concerns about a “web” of 

 29 USITC, hearing transcript, June 16, 2010, 337–45; written testimony, June 16, 2010. For more 

information about PCT Government Relations, please see http://www.pctgr.com. 30 USITC, hearing transcript, June 15, 2010, 211–14. For more information about SIIA, please see 

http://www.siia.net. 31 During the hearing, Mr. John Neuffer of ITI shared his allocated time with the Software and 

Information Industry Association, ITI’s fellow member of the United States Information Technology Office 

(USITO) in Beijing. A summary of ITI’s testimony appears earlier in this appendix. 
D-17

Chinese policies tied to indigenous innovation goals aimed at promoting domestic 

interests. Mr. Bohannon said these policies have reached the point where they are now a 

structural issue in the U.S.-China economic relationship, one that is recognized by both 

sides as requiring further discussion. 

Telecommunications Industry Association (TIA)32

In a written submission, TIA, which describes itself as an association of the global 

information and communications technology industry with 600 members, said that 

China’s indigenous innovation goal has increasingly become a structural issue. TIA said 

that this strategy, which encompasses many policies even beyond the proposed 

indigenous innovation catalogue, will limit the ability of U.S. firms to directly compete 

within China. TIA said that China must fulfill its international commitments and 

recognize that innovation is global and requires cross-border collaboration. TIA also 

noted its concern about mandated Chinese domestic standards and technologies that 

differ from international norms and that lack transparency in terms of both development 

and implementation. TIA said that this problem partially stems from a narrow 

interpretation of international standards which, while in compliance with China’s WTO 

commitments, means China will only implement standards developed in an international 

forum and not unofficial technology norms. 

In addition, TIA noted that China continues to unfairly favor domestic companies or 

technologies, which they believe is especially true of the Chinese telecommunications 

industry. TIA noted that China recently had developed its own third-generation mobile 

phone standard aided by government subsidization and other forms of public support, and 

expressed concerns that China’s mobile phone standard and its promotion of other 

domestic technologies will disadvantage foreign firms in the Chinese marketplace. 

Tessera Technologies, Inc. (Tessera)33

In a written submission Tessera presented its views relating to the value of IPR in its 

industry as well as the need for its protection. In its submission, Tessera, headquartered in 

California, stated that it mainly performs research and development in miniaturization 

technologies, primarily semiconductors. It said that after significant research investments, 

which amounted to $71 million in 2009 alone, the company is dependent on licensing 

fees to recoup research and development expenditures and finance its next innovations. 

Tessera said that licensing fees have become increasingly important to the U.S. economy 

and represented one of the few areas in which the U.S. has a trade surplus. Tessera said 

that “non-practicing,” or non-manufacturing, innovators are an important component of 

the American segmented supply chain business model. Additionally, Tessera noted the 

importance of the Commission’s ability to restrict the import of patent-infringing 

components into the United States. Tessera claimed this is a benefit to companies such as 

theirs which would not be able to identify, or have the resources to sue, all infringing 

foreign firms. 

 32 Written submission to the USITC, July 7, 2010. For more information about TIA, please see 

http://www.tiaonline.org. 33 Mark A. Kressel and Benjamin W. Hattenbach of Irell & Manella LLP, counsel for Tessera 

Technologies, Inc., written submission to the USITC, July 9, 2010. For more information about Tessera, 

please see http://www.tessera.com/Pages/tessera.aspx. 
D-18

Tessera expressed the view that the Commission must continue its work to protect U.S. 

IPR. Additionally, Tessera stated that it felt the Commission should clarify a recent 

Federal Circuit court decision in Kyocera Wireless Corporation v. International Trade 

Commission that may restrict the Commission’s ability to ban downstream products 

based on a patent-infringing component. Tessera also recommended that the Commission 

focus on Chinese IPR infringement and its negative effects on non-practicing U.S. 

innovators; the decrease in competitiveness for firms with valid IP licenses versus those 

without; and widespread IPR infringement for difficult-to-detect components within a 

finished product. 

U.S. Chamber of Commerce34

 

In testimony at the Commission’s hearing, Mr. Jeremie Waterman, senior director in 

Greater China for the U.S. Chamber of Commerce, said that the U.S. Chamber of 

Commerce represents the interests of more than 3 million businesses, and is the largest 

such federation in the world. Noting the importance of the U.S.-China trade relationship, 

Mr. Waterman said that weak Chinese IPR protection, combined with the development of 

discriminatory Chinese indigenous innovation policies, is undermining the relationship’s 

benefits for U.S. businesses. Mr. Waterman also expressed concern that the entire 

U.S. economy may be harmed by continued IPR violations, and referenced a recent 

U.S. Chamber of Commerce paper that reported that U.S. IP-intensive industries create 

high-paying jobs, invest heavily in research that drives innovation and future 

competitiveness, lead in exports, and have a positive trade balance. 

Mr. Waterman said that Chinese counterfeits are a continuing concern, particularly since 

such items are being exported from China to the world, aided by the Internet. He said that 

these violations result in lost U.S. sales and lower current and future U.S. 

competitiveness. He expressed the view that although China has laws in place to protect 

IPR and patent infringement lawsuits have increased, Chinese court rulings are 

unpredictable and may implicitly recognize indigenous innovation goals for political 

reasons. As an example, he cited two advisory rulings by China’s Supreme People’s 

Court, in which the court seemed to find that holders of patents on technology crucial to a 

Chinese national standard should be entitled to a less-than-normal royalty to compensate 

for their technology’s use. 

Mr. Waterman also described the origins of China’s indigenous innovation policies, and 

said they are part of the nation’s search for sustainable development, national security, 

and greater international competitiveness. Indigenous innovation, he said, was first 

explicitly introduced in China’s National Medium- and Long-Term Plan for the 

Development of Science and Technology (2006–20). Mr. Waterman pointed to the 16 

megaprojects and government procurement policies as particularly important. He said 

that two laws that took effect in 2008 are also troubling: the antimonopoly law and the 

Third Amendment to China’s patent law. The first, he said, has the potential to be used 

against foreign firms through enforced limits on IPR charges and licensing fees, while the 

second expands the grounds for compulsory licensing. 

 34 USITC, hearing transcript and exhibits, June 15, 2010, 167–77, and 70–98, respectively; written 

testimony to the USITC, June 15, 2010. For more information about the U.S. Chamber of Commerce, please 

see http://www.uschamber.com. 
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Finally, Mr. Waterman recommended that the Commission assess three markets—the 

Chinese, the American, and the world—separately, giving particular attention to 

emerging industries and possible services sector goals, which he believed China may 

target to expand domestic capacity. 

U.S. Council for International Business (USCIB)35

 

In testimony at the Commission’s hearing, Mr. Steve Canner, vice president of USCIB, 

described USCIB as the American affiliate of three global business groups: the 

International Chamber of Commerce, the International Organization of Employers, and 

the Business and Industry Advisory Committee to the OECD. He said the USCIB 

represents over 300 U.S. corporations, professional firms, and business associations, and 

that many of its members have substantial trade and investment interests in China. 

Mr. Canner described USCIB’s concerns regarding IPR enforcement in China and 

China’s development of indigenous innovation policies. He also referred to a study by 

Professor Matt Slaughter regarding the benefits of international engagement by 

U.S. firms and supporting the need for better Chinese market conditions. Finally, he 

suggested that the Commission staff use the Bureau of Economic Analysis database as an 

information source. 

In a post-hearing submission, USCIB discussed the U.S. economic costs of Chinese IPR 

infringement, noting that a 2007 OECD study estimated the cost of international trade in 

counterfeit goods at $250 billion. USCIB acknowledged the work China has done so far 

to combat copyright violations, but said more work is needed. USCIB said that these 

activities should be supported by better information sharing between Chinese and 

international enforcement agencies as well as between the public and private sectors. 

USCIB also noted that U.S. companies have reported that, with the exceptions of 

Shanghai and Beijing, IPR enforcement is hindered by the insignificant penalties for 

violating firms, the failure to destroy equipment involved in the illegal copying of 

products, and the administrative cost of bringing a criminal case. Finally, USCIB noted 

the importance of bilateral dialogue between the United States and China to correct and 

prevent these problems. 

Peter K. Yu, Professor, Drake University Law School36

In testimony at the Commission’s hearing, Professor Yu described four challenges that, in 

his opinion, faced the Commission’s study: (1) analyzing how weak IPR may support 

democracy in China; (2) determining true economic gains and losses for the entire U.S. 

economy; (3) assessing Chinese indigenous innovation policies; and (4) predicting how 

stronger Chinese IPR might impact the U.S. economy. 

With regard to the first point, Professor Yu said that there are many recognized problems 

with IPR violations in general. However, he noted there may be one positive outcome—

namely, the freer movement of information in China, which is otherwise heavily 

controlled. In his view, the freer movement of information, even from movies and 

television programs, can assist Chinese democracy. 

 35 USITC, hearing transcript, June 16, 2010, 354–63; written submission to the USITC, July 20, 2010. 

For more information about USCIB, please see http://www.uscib.org. 36 USITC, hearing transcript, June 15, 2010, 42–50. 
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Addressing the second challenge, Professor Yu expressed the view that determining gains 

and losses to the entire American economy from IPR infringement is extremely difficult. 

He said that firms whose IPR have been violated are undeniably hurt, but other U.S. 

sectors may see benefits. By way of example, he said that Chinese tourists and students 

have been inspired by illegally reproduced movies to come to the United States, that 

industry standards favoring some U.S. products have been set in response to the wide 

availability of certain pirated U.S. items, and that counterfeit products may benefit 

consumers who can buy similar items at a lower price. 

 

For the third challenge, Professor Yu said that China’s overall indigenous innovation goal 

includes both good and bad policies. On the one hand, Professor Yu pointed to the longstanding idea that increasing the number of Chinese innovators would also increase the 

number of domestic stakeholders in favor of improved IPR protection and reform. On the 

other hand, he noted that some policies, such as those discriminating against foreign 

companies, could violate China’s WTO obligations. 

In conclusion, Professor Yu suggested that the United States may have a comparative 

advantage in its superior IPR protection for retaining research and development firms, 

one that could potentially be undermined if China were to better enforce its legislation 

but retain its low labor costs. Finally, he expressed concern that more Chinese IPR 

enforcement could work against American firms that might eventually face a barrier to 

entry in the form of Chinese lawsuits against them.