Intellectual Property Violations and China: Legal Remedies

Intellectual Property Violations and China: Legal Remedies

Intellectual Property Violations and China:
September 17, 2020
Legal Remedies
Kevin J. Hickey,
Concerns that the government of the People’s Republic of China (China) fails to protect and
Coordinator
enforce intellectual property (IP) rights, and thus harms U.S. IP rights holders, have been one of
Legislative Attorney
the key issues in U.S.-China relations for decades. These concerns extend both to actions of

China’s government itself and state-affiliated entities, as well as to actions of Chinese persons
Nina M. Hart
and entities not affiliated with the Chinese government. The primary issues raised by the U.S.
Legislative Attorney
government and U.S. businesses have evolved over time, from an earlier focus on the adequacy

of Chinese domestic IP protection and enforcement (e.g., to counter piracy and counterfeiting), to
more recent concerns about cyber intrusions and strategic acquisitions.
Brandon J. Murrill
Legislative Attorney
During the Trump Administration, the U.S. Trade Representative (USTR) investigated China’s

actions with respect to IP and concluded that a number of Chinese policies and practices violated
Kevin T. Richards
Section 301 of the Trade Act of 1974. In response, the United States initiated a World Trade
Legislative Attorney
Organization (WTO) dispute against China and imposed tariffs on billions of dollars of Chinese

imports. China responded by imposing tariffs on U.S. goods and challenging the U.S. tariffs at
the WTO. In January 2020, the United States and China reached a deal known as the “Phase One

Agreement” that addressed some of the trade and IP issues between the parties. However, major
issues—such as coerced technology transfer—were not resolved by the Phase One Agreement. Although the parties
anticipated further negotiations, the onset of the Coronavirus Disease 2019 (COVID-19) pandemic has increased tensions
between the nations and stalled progress toward a Phase Two Agreement.
Violations of IP rights by Chinese persons and entities are not a monolithic phenomenon, and general terms like “IP theft”
often obscure important distinctions that affect the legal options available to address IP violations. One such distinction is the
type of IP at issue. Different varieties of IP—such as patents, copyrights, trademarks, or trade secrets—protect different types
of intellectual creation, involve different procedures for obtaining rights, and grant the IP owner distinct rights that vary in
scope and duration. A second important distinction is the type of IP violation at issue—that is, the particular policy, practice,
or action that is alleged to undermine U.S. IP rights. Possible violations include a failure to provide adequate legal protection
for IP, a failure to enforce existing IP laws, trade secret misappropriation (including via cyber intrusion), discriminatory IP
licensing laws, coerced technology transfer as a condition of regulatory approval or market access, or bad-faith assertion of
IP rights. The legal remedies available will depend on the type of violation, the type of IP, and where the violation occurred.
Existing U.S. legal remedies for IP violations can be grouped into two broad categories. First, there are remedies for systemic
violations, which are usually initiated by the executive branch to address widespread trade or IP violations by foreign actors.
The executive branch possesses a number of constitutional and statutory authorities to protect IP rights. These include
enforcement provisions in international agreements and authority to negotiate such agreements. U.S. law also contains
several statutory provisions that allow the executive branch to investigate IP violations that affect international trade and then
impose different types of remedies, including import and export controls, suspension of trade benefits, imposition of tariffs,
and regulation or prohibition of certain transactions.
Second, there are legal remedies for individual violations—that is, discrete IP violations by a particular person or entity.
Several legal doctrines limit domestic legal remedies for violations involving foreign actors or activity, however. First, under
the presumption against extraterritoriality, U.S. law generally does not reach activity that occurred outside of the United
States unless a statute clearly indicates otherwise. Second, under the requirement of personal jurisdiction, U.S. courts may
only adjudicate disputes involving a defendant who has a sufficient connection with the forum or who has submitted to the
court’s power in some way. Presuming that U.S. law applies and any jurisdictional barriers can be overcome, possible
remedies for individual violations include civil actions for infringement; import controls by the International Trade
Commission and U.S. Customs and Border Protection agency; and criminal prosecutions for economic espionage, computer
hacking, and, in some circumstances, IP infringement.
Moving forward, Congress may consider whether these existing legal options are sufficient to deter or remedy continued
practices or future IP violations by Chinese entities.
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Contents
Intellectual Property Violations and China ...................................................................................... 5
Types of Intellectual Property ................................................................................................... 6
Basis and Rationales for IP Rights ...................................................................................... 6
Patents ................................................................................................................................. 7
Copyrights ........................................................................................................................... 8
Trademarks ......................................................................................................................... 9
Trade Secrets ...................................................................................................................... 11
Overlap and Interactions Among Different Forms of IP ................................................... 12
Forms of “IP Theft” ................................................................................................................. 15
Under-Protection ............................................................................................................... 15
Infringement and Under-Enforcement .............................................................................. 17
Trade Secret Misappropriation and Cyber Intrusions ....................................................... 19
Coercive Technology Transfer .......................................................................................... 20
Discriminatory Restrictions on Contractual IP Licensing................................................. 21
Bad-Faith Assertion/Registration ...................................................................................... 22
State Sponsorship and IP Violations ........................................................................................ 23
Existing Legal Remedies ............................................................................................................... 24
Systemic Violations: Foreign Affairs and Trade Remedies ..................................................... 24
TRIPS and WTO Disputes ................................................................................................ 25
Diplomacy and International Agreements......................................................................... 27
Section 301 of the Trade Act of 1974 ............................................................................... 28
Export Controls ................................................................................................................. 31
Section 232 of the Trade Expansion Act of 1962 .............................................................. 32
Section 201 of the Trade Act of 1974 ............................................................................... 34
The International Emergency Economic Powers Act ....................................................... 35
Individual Violations: Civil, Criminal, and Administrative Remedies .................................... 37
Remedial Issues: Jurisdiction and Territoriality ................................................................ 37
Civil Actions ..................................................................................................................... 41
Import Controls ................................................................................................................. 47
Criminal Prosecutions ....................................................................................................... 50
Conclusion ..................................................................................................................................... 54

Tables
Table 1. Comparison of Each Form of Federal Intellectual Property Protection .......................... 14

Contacts
Author Information ........................................................................................................................ 55

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ntellectual property (IP) plays a critical role in the global economy by encouraging
innovation, creativity, and the development of new and useful technologies, as well as
facilitating international trade and investment.1 IP laws generally aim to encourage
I individuals and businesses to invest time, effort, and money into developing new
technologies and creative works by providing legal protections for different forms of
intellectual creation.2 As the U.S. economy has become increasingly knowledge-based and reliant
on creativity and technological innovation as sources of competitive advantage, IP-intensive
industries have become a significant and critical part of the U.S. economy.3
Concerns that the government of the People’s Republic of China (China) fails to protect and
enforce IP rights, and thus harms U.S. IP rights holders, have been key issues in U.S.-China
relations for decades.4 These concerns extend both to actions of China’s government itself and
state-affiliated entities, as well as to actions of Chinese persons and entities unaffiliated with the
Chinese government.
The primary concerns raised by the U.S. government and American businesses have evolved over
time. In the 1990s, before China’s 2001 accession to the World Trade Organization (WTO),
China’s failure to provide basic levels of legal protection for some forms of IP was a central
concern.5 During China’s WTO accession process, its use of regulatory structures to coerce
technology transfers from U.S. businesses to Chinese entities as a condition of doing business in
China was another concern.6 In the early 2000s, China’s failure to adequately enforce its IP laws
received significant attention, leading to a 2007 WTO dispute between the United States and
China.7 Unauthorized cyber intrusions and trade secret misappropriation were—and remain—an
area of concern.8
In recent years, the United States has increasingly focused on coercive technology transfers,
strategic acquisitions, and cyber intrusions. On August 18, 2017, the U.S. Trade Representative
(USTR) initiated an investigation under Section 301 of the Trade Act of 1974 (Section 301) into
“whether acts, policies, and practices of the Government of China related to technology transfer,

1 See generally DANIEL C.K. CHOW & EDWARD LEE, INTERNATIONAL INTELLECTUAL PROPERTY 1–17 (3d ed. 2018).
2 See, e.g., Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480 (1974) (“The patent laws promote [technological
progress] by offering a right of exclusion for a limited period as an incentive to inventors to risk the often enormous
costs in terms of time, research, and development.”); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156
(1975) (“The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the
ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”).
3 See generally U.S. PATENT & TRADEMARK OFF., INTELLECTUAL PROPERTY AND THE U.S. ECONOMY: 2016 UPDATE
(2016), https://www.uspto.gov/sites/default/files/documents/IPandtheUSEconomySept2016.pdf; CRS Report RL34292,
Intellectual Property Rights and International Trade, by Shayerah Ilias Akhtar, Ian F. Fergusson, and Liana Wong, at
6–9.
4 See CRS Report RL33536, China-U.S. Trade Issues, at 39–54 [hereinafter CRS China-U.S. Trade Report]. Enhancing
IP protection and enforcement internationally is a long-standing and significant component of U.S. international trade
policy as a general matter. See generally Ilias Akhtar et al., supra note 3.
5 See Donald P. Harris, The Honeymoon is Over: The U.S.-China WTO Intellectual Property Complaint, 32 FORDHAM
INT’L L.J. 96, 106–08 (2008) (reviewing pre-WTO history of U.S.-China IP disputes).
6 See World Trade Organization, Report of the Working Party on the Accession of China, ¶¶ 48–49, WTO Doc.
WT/MIN(01)/3 (Nov. 10, 2001).
7 See Requests for Consultations by the United States, China—Measures Affecting the Protection and Enforcement of
Intellectual Property Rights, WTO Doc. WT/DS362/1 (Apr. 16, 2007).
8 See OFF. OF THE U.S. TRADE REPRESENTATIVE, FINDINGS OF THE INVESTIGATION INTO CHINA’S ACTS, POLICIES, AND
PRACTICE RELATED TO TECHNOLOGY TRANSFER, INTELLECTUAL PROPERTY, AND INNOVATION UNDER SECTION 301 OF THE
TRADE ACT OF 1974 (2018), at 151–54, https://ustr.gov/sites/default/files/Section%20301%20FINAL.PDF [hereinafter
SECTION 301 INVESTIGATION REPORT].
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intellectual property, and innovation” were unreasonable or discriminatory, and burdened or
restricted U.S. commerce.9
On March 22, 2018, the USTR concluded its investigation, finding that four Chinese policies and
practices violated Section 301: (1) use of foreign ownership restrictions and administrative
licensing requirements to pressure technology transfer from U.S. companies to Chinese entities;
(2) IP licensing restrictions that discriminate against foreign entities; (3) systematic investment in
or acquisition of U.S. companies to acquire targeted technologies; and (4) unauthorized cyber
intrusions into U.S. networks to obtain IP and other confidential business information.10
In light of the USTR’s conclusions, the President issued a memorandum directing the USTR to
consider three responses: (1) increased tariffs on goods imported into the United States from
China; (2) initiation of a WTO dispute settlement process with respect to China’s discriminatory
licensing practices; and (3) executive branch actions to address concerns about Chinese inbound
investment and acquisition.11 On March 26, 2018, the United States initiated a WTO dispute
alleging that China’s discriminatory licensing practices violate its WTO commitments.12
Beginning in July 2018 and continuing through 2019, the United States imposed tariff increases
on Chinese products worth over $200 billion in several stages.13 China responded by issuing
retaliatory tariffs on U.S. goods worth over $100 billion and filing a WTO dispute challenging the
United States’ actions.14

9 Initiation of Section 301 Investigation, Hearing, and Request for Public Comments: China’s Acts, Policies, and
Practices Related to Technology Transfer, Intellectual Property, and Innovation, 82 Fed. Reg. 40,213 (Aug. 24, 2017).
The investigation followed an August 14, 2017, memorandum from the President directing the USTR to determine
whether to investigate these practices. Id. at 40,213.
10 SECTION 301 INVESTIGATION REPORT, supra note 8. For a summary of the USTR’s conclusions, see CRS Legal
Sidebar LSB10109, Tricks of the Trade: Section 301 Investigation of Chinese Intellectual Property Practices
Concludes (Part II), by Brandon J. Murrill.
11 Presidential Memorandum on the Actions by the United States Related to the Section 301 Investigation of China’s
Laws, Policies, Practices, or Actions Related to Technology Transfer, Intellectual Property, and Innovation, 2019
DAILY COMP. PRES. DOC. 1 (Mar. 22, 2018), https://www.whitehouse.gov/presidential-actions/presidential-
memorandum-actions-united-states-related-section-301-investigation/.
12 See Request for Consultations by the United States, China—Certain Measures Concerning the Protection of
Intellectual Property Rights, WTO Doc. WT/DS542/1 (Mar. 26, 2018); see infra notes 231–237 and accompanying text
(summarizing the dispute and its current status).
To address concerns about inbound foreign investment, Congress passed the Foreign Investment Risk Review
Modernization Act of 2018 (FIRRMA), which the President signed into law on August 13, 2018. See Pub L. No. 11-
232, tit. XVII, subtit. A, 132 Stat. 1636, 2174–2207 (2018). FIRRMA is intended to modernize the processes and
authority of the Committee on Foreign Investment in the United States (CFIUS) to review the national security effects
of certain transactions. Id. at 2175–76; Statement on Congressional Action on Legislation to Reduce the National
Security Risks Posed by Certain Types of Foreign Investment, 2018 DAILY COMP. PRES. DOC. 1 (June 27, 2018),
https://www.whitehouse.gov/briefings-statements/statement-president-regarding-investment-restrictions/ (urging
Congress to pass FIRRMA to address the foreign investment concerns raised in the Section 301 investigation).
13 See CRS In Focus IF10708, Enforcing U.S. Trade Laws: Section 301 and China [hereinafter CRS Section 301 and
China]; CRS Report R45529, Trump Administration Tariff Actions (Sections 201, 232, and 301): Frequently Asked
Questions, coordinated by Brock R. Williams, at 3.
14 See Williams et al., supra note 13, at 7; see also CRS Insight IN10971, Escalating U.S. Tariffs: Affected Trade,
coordinated by Brock R. Williams; CRS Section 301 and China, supra note 13; CRS In Focus IF10708, Enforcing U.S.
Trade Laws: Section 301 and China; CRS In Focus IF11085, China’s Retaliatory Tariffs on U.S. Agricultural
Products; Request for Consultations by China, United States—Tariff Measures on Certain Goods from China, WTO
Doc. WT/DS543/1 (Apr. 5, 2018). On September 15, 2020, a WTO panel issued a report finding that the United States
violated several WTO obligations by imposing the Section 301 tariffs. Panel Report, United States—Tariff Measures on
Certain Goods from China, WTO Doc. WT/DS543/R (Sept. 15, 2020).
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On January 15, 2020, the United States and China signed a trade deal known as the “Phase One
Agreement” intended to address issues relating to the Section 301 investigation and other trade
concerns.15 The Phase One Agreement touches on several areas in China-U.S. trade relations,
including agriculture, financial services, macroeconomic policy, currency exchange rates, and
trade purchases.16 With respect to IP, China makes several commitments in the Phase One
Agreement, agreeing to
 increase enforcement against trade secret misappropriation by expanding the
scope of persons who may be sued for trade secret theft, providing broader
preliminary and criminal penalties, and addressing unauthorized disclosures
of trade secrets by Chinese regulatory authorities;17
 strengthen patent protections for pharmaceuticals by creating a mechanism
for the early resolution of pharmaceutical patent disputes, and providing for
patent term extensions and adjustments based on regulatory delays in the
grant of patents or marketing approval for pharmaceutical products;18
 improve procedures to counter copyright infringement online and
counterfeiting on major e-commerce platforms;19
 take effective enforcement actions against counterfeit medicines and other
counterfeit goods with health and safety risks;20 and
 provide for procedures to improve border enforcement actions against
counterfeit goods, such as requirements that customs and judicial authorities
generally destroy such goods.21
The Phase One Agreement did not resolve technology transfer issues—one of the central focuses
of the Section 301 investigation—leaving the matter for future negotiations.22 The Phase One
Agreement does contain general commitments by the parties not to “require or pressure”
technology transfer, but it avoids details on implementing that commitment.23

15 OFF. OF THE U.S. TRADE REPRESENTATIVE & U.S. DEP’T OF THE TREASURY, ECONOMIC TRADE AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND THE PEOPLE’S REPUBLIC OF CHINA: PHASE ONE, Jan. 15, 2020, https://ustr.gov/
sites/default/files/files/agreements/phase%20one%20agreement/Economic_And_Trade_Agreement_Between_The_Uni
ted_States_And_China_Text.pdf [hereinafter Phase One Agreement]. For a summary of the Phase One Agreement, see
CRS Insight IN11208, U.S. Signs Phase One Trade Deal with China, by Karen M. Sutter. For an analysis of the legal
basis for the President to enter into this agreement without congressional involvement, see CRS Legal Sidebar
LSB10403, The Legal Basis for the U.S.-China “Phase One” Agreement and Implications for Implementation, by Nina
M. Hart.
16 See Phase One Agreement, supra note 15, chs. 3–6.
17 Id. arts. 1.2–1.9.
18 Id. arts. 1.10–1.23.
19 Id. arts. 1.13–1.14.
20 Id. arts. 1.18–1.19.
21 Id. arts. 1.20–1.22.
22 See David J. Lynch, Trump Signs off on Deal to Ease China Trade War, WASH. POST (Dec. 12, 2019),
https://www.washingtonpost.com/business/2019/12/12/trump-says-trade-deal-with-china-is-very-close-just-days-
ahead-tariff-deadline/ (“[The] so-called ‘phase one’ agreement would leave the thorniest issues in the U.S.-China trade
dispute to future negotiations[, including China’s] practice of forcing foreign companies to surrender technology
secrets in return for access to the Chinese market . . . .”).
23 Phase One Agreement, supra note 15, arts. 2.1–2.4.
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Observers have noted that many of the Phase One Agreement’s IP provisions reflect changes or
commitments that China had made before,24 or are phrased at high levels of generality without
specific timelines for implementation.25 After the Phase One Agreement was reached, however,
the United States and China agreed to attempt to deescalate their trade conflict. In February 2020,
both sides agreed to delay imposition of the next round of proposed tariff increases: the United
States agreed to reduce some tariffs it imposed in 2019, and China agreed to suspend some of its
retaliatory tariffs.26
Since the onset of the Coronavirus Disease 2019 (COVID-19) pandemic, a number of events and
issues have increased tensions between the nations. This has led to a delay of the planned six-
month review of the Phase One Agreement27 as well as an apparent halt to further negotiations of
a Phase Two Agreement.28 Observers are uncertain whether the Phase One Agreement will prove
lasting and whether a further agreement will emerge.29 In the meantime, the United States
continues to raise concerns about IP theft by Chinese entities, including recent criminal
allegations of Chinese state-sponsored hacking of COVID-19 vaccine research.30
This report seeks to place these developments into a broader legal context by reviewing the
various legal options available to address IP violations by Chinese entities. First, it describes
various forms that “IP theft” by Chinese entities may take, depending on the form of IP at issue
(e.g., patents, copyrights, trademarks, or trade secrets) and the nature of the violation. These

24 See Sutter, supra note 15 (“China’s commitments on counterfeiting, patent and trademark, and pharmaceutical
protections reflect domestic actions China already took and similar language from earlier commitments, according to
former U.S. government negotiators.”).
25 See, e.g., Phase One Agreement, supra note 15, art. 1.34 (“Each party shall determine the appropriate method of
implementing the provisions of this Agreement within its own system and practice.”); Sutter, supra note 15 (“[The] IP
commitments appear to be more open-ended and are not linked to corresponding changes required in existing Chinese
laws, regulations, rules, practices and industrial policies.”); Ningling Wang et al., Phase 1 China Trade Deal: Patent
Provisions, FINNEGAN (Jan. 27, 2020), https://www.finnegan.com/en/insights/blogs/prosecution-first/phase-1-us-china-
trade-deal-patent-provisions.html (“The value of [the Phase One Agreement’s patent] provisions will not be known
until more details are known in terms of how [they] will be implemented . . . .”); Bill Donahue, US-China Trade Deal
Aims to Bolster IP Protection, LAW360 (Jan. 15, 2020) (“While substantively ambitious, Wednesday’s agreement is
loose on time frames for Chinese action. The deal requires an ‘action plan’ within [thirty working days] but lacks any
other hard deadlines.”).
26 Williams, Escalating U.S. Tariffs, supra note 14; Sutter, supra note 15; David Lawder et al., What’s in the US-China
Phase 1 Trade Deal, REUTERS (Jan. 15, 2020), https://www.reuters.com/article/us-usa-trade-china-details-factbox/
whats-in-the-us-china-phase-1-trade-deal-idUSKBN1ZE2IF.
27 Jenny Leonard, U.S., China Postpone Weekend Talks on Trade Deal, BLOOMBERG (Aug. 14, 2020),
https://www.bloomberg.com/news/articles/2020-08-14/u-s-china-postpone-weekend-talks-on-trade-
deal?sref=iK6sCltL.
28 Grace Segers, Trump Says He’s “Not Interested” in Talking to China About Trade, CBS NEWS (July 14, 2020),
https://www.cbsnews.com/news/trump-china-trade-deal-phase-2-not-interested-talking/.
29 U.S.-China Trade Deal Is ‘Fine,’ Trump Advisor Kudlow Says, BLOOMBERG (Aug. 12, 2020),
https://www.bloomberg.com/news/articles/2020-08-12/u-s-china-trade-deal-is-fine-trump-adviser-kudlow-
says?sref=iK6sCltL; Claire Reade, Commentary: Trade May Still Be the Ballast in U.S.-China Relations—At Least for
Now, CSIS (Aug. 10, 2020), https://www.csis.org/analysis/trade-may-still-be-ballast-us-china-relations-least-now;
Scott Lincicome, Trump’s China Trade Deal was Designed to Fail, CATO INST. (June 26, 2020), https://www.cato.org/
publications/commentary/trumps-china-trade-deal-was-designed-fail; Eamon Barrett, ‘Unrealistically High:’ Experts
Doubt China Can Fulfill Its Targets in ‘Phase One’ of the U.S. Trade Deal, FORTUNE (Jan. 16, 2020),
https://fortune.com/2020/01/16/us-china-trade-deal-details-purchases/.
30 Ellen Nakashima & Devlin Barrett, U.S. Accuses China of Sponsoring Criminal Hackers Targeting Coronavirus
Vaccine Research, WASH. POST (July 21, 2020), https://www.washingtonpost.com/national-security/us-china-covid-19-
vaccine-research/2020/07/21/8b6ca0c0-cb58-11ea-91f1-28aca4d833a0_story.html; see infra notes 499–501 and
accompanying text.
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distinctions are significant because the remedies available to the U.S. government and individual
rights holders will depend on the nature and circumstances of the IP violations. Second, the report
reviews the scope and requirements of the legal remedies available under U.S. and international
laws. These remedies fall into two broad categories: (1) remedies for systemic IP violations,
which are initiated by the U.S. executive branch to target widespread IP violations by foreign
actors by relying on trade or international law; and (2) remedies for individual IP violations,
which seek to redress discrete IP violations by particular entities by relying on domestic civil,
administrative, and criminal processes.
Intellectual Property Violations and China
Although news reports and U.S. entities often accuse China of “stealing IP,”31 this general usage
conflates both different types of IP and different types of IP violations. For example, in several
reports,32 the USTR has found that Chinese corporations, individuals, and its government
(collectively, Chinese entities), have, among other things,
 used legal and regulatory requirements, such as foreign ownership
restrictions and administrative approval processes, to require or pressure
technology transfer from U.S. companies seeking to do business in China;33
 imposed discriminatory technology licensing restrictions that impair U.S.
companies’ ability to negotiate fair, market-based terms when they seek to
license IP or transfer technology to Chinese companies;34
 conducted and supported unauthorized intrusions into U.S. computer
networks to acquire valuable confidential business and technical
information,35 as well as misappropriating such confidential information
through other means;36
 manufactured, marketed, and exported counterfeit trademarked goods;37 and
 permitted and facilitated online piracy of copyrighted music, television,
movies, and other creative works.38

31 See, e.g., Erik Sherman, One in Five U.S. Companies Say China Has Stolen Their Intellectual Property, FORTUNE,
(Mar. 1, 2019), https://fortune.com/2019/03/01/china-ip-theft/; Grant Clark, What Is Intellectual Property, and Does
China Steal It?, WASH. POST (Jan. 21, 2019), https://www.washingtonpost.com/business/what-isintellectual-property-
anddoes-china-steal-it/2019/01/21/180c3a9e-1d64-11e9-a759-2b8541bbbe20_story.html; Robert Boxwell, How
China’s Rampant Intellectual Property Theft, Long Overlooked by U.S., Sparked Trade War, SOUTH CHINA MORNING
POST MAG. (Oct. 28, 2018), https://www.scmp.com/magazines/post-magazine/long-reads/article/2170132/how-chinas-
rampant-intellectual-property-theft.
32 See, e.g., OFF. OF THE U.S. TRADE REPRESENTATIVE, 2019 SPECIAL 301 REPORT (2019), https://ustr.gov/sites/default/
files/2019_Special_301_Report.pdf [hereinafter 2019 SPECIAL 301 REPORT]; SECTION 301 INVESTIGATION REPORT,
supra note 8; OFF. OF THE U.S. TRADE REPRESENTATIVE, 2017 REPORT TO CONGRESS ON CHINA’S WTO COMPLIANCE
(2018), https://ustr.gov/sites/default/files/files/Press/Reports/China%202017%20WTO%20Report.pdf [hereinafter 2017
CHINA WTO COMPLIANCE REPORT].
33 SECTION 301 INVESTIGATION REPORT, supra note 8, at 19–43; 2019 SPECIAL 301 REPORT, supra note 32, at 17, 46–47.
34 SECTION 301 INVESTIGATION REPORT, supra note 8, at 48–61.
35 Id. at 153–76; 2019 SPECIAL 301 REPORT, supra note 32, at 18, 46.
36 2019 SPECIAL 301 REPORT, supra note 32, at 18, 40; 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 16–17,
115.
37 2019 SPECIAL 301 REPORT, supra note 32, at 24–26, 42–43; 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at
116–17.
38 2019 SPECIAL 301 REPORT, supra note 32, at 21–22, 44; 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 18,
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IP violations by Chinese entities are thus not a monolithic phenomenon, and general terms like
“IP theft” often obscure important legal distinctions. Different actions by Chinese entities
implicate distinct IP or trade laws, which affects the various legal remedies that may be available.
To better understand these distinctions, this section presents a taxonomy of IP violations along
two dimensions: (1) the particular type of IP at issue, and (2) the type of violation—that is, what
is meant by “theft.” It also briefly notes a third distinction—the degree to which the IP violation
is committed by the Chinese government or state-affiliated entities (or with their support), or
instead by Chinese individuals or entities not affiliated with the Chinese government.
Types of Intellectual Property
IP law comprises a set of legal rights to exclude others from making, copying, misappropriating,
selling, disclosing, or using certain intangible creations of the human mind.39 There is no
universally accepted definition of what qualifies as “intellectual property.” Sometimes, IP is used
as an umbrella term to refer, at least primarily, to three distinct forms of legal protection: patents,
copyrights, and trademarks.40 Other times, IP is used more broadly to include related areas of law,
including trade secrets, rights of publicity, misappropriation, and moral rights, as well as narrower
legal regimes protecting plant varieties, industrial design, circuit design, geographical indications,
and the like.41
Based on their primarily federal nature and commercial importance, this report focuses on four
types of IP: patents, copyrights, trademarks, and trade secrets. Each of these forms of IP protects
a different type of intellectual creation, involves different procedures for obtaining rights, and
grants the IP owner distinct rights that vary in scope and duration. After a brief discussion of the
purposes and rationales for IP, this section overviews these four major forms of IP protection.
Basis and Rationales for IP Rights
Federal IP laws are legally grounded in one of two constitutional provisions. First, the U.S.
Constitution’s IP Clause provides Congress with the power “[t]o promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”42 The IP Clause provides the constitutional basis for
U.S. patent and copyright law.43 Under the IP Clause, patents and copyrights are intended to

115–16.
39 See Intellectual Property, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining IP as a “category of intangible rights
protecting commercially valuable products of the human intellect”).
40 See, e.g., id. (“[IP] comprises primarily trademark, copyright, and patent rights, but also includes trade-secret rights,
publicity rights, moral rights, and rights against unfair competition.”); JAMES BOYLE & JENNIFER JENKINS,
INTELLECTUAL PROPERTY: LAW & THE INFORMATION SOCIETY ix (4th ed. 2018) (defining IP as “the set of private legal
rights that allows individuals and corporations to control intangible creations and marks” and stating that trademarks,
copyrights, and patents are “the three main forms of US federal intellectual property”).
41 See, e.g., TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 301 (1994) [hereinafter TRIPS]
(defining IP for purposes of the Agreement as comprising patents, copyrights, trademarks, geographical indications,
industrial design protections, trade secrets, and integrated circuit design protection); Rochelle C. Dreyfuss & Justine
Pila, Intellectual Property Law: An Anatomical Overview, in THE OXFORD HANDBOOK OF INTELLECTUAL PROPERTY
LAW 5–6 (Rochelle C. Dreyfuss & Justine Pila eds., 2018) (defining IP as “the area(s) of law concerned with the
recognition and protection of exclusionary rights in” a number of categories of subject matter, including authorial
works, inventions, plant varieties, signs of commercial origin, designs, and confidential information).
42 U.S. CONST. art. I, § 8, cl. 8.
43 See generally Copyrights and Patents: Origins and Scope of the Power, in CONSTITUTION OF THE UNITED STATES:
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encourage innovation and the spread of knowledge by providing incentives to create new creative
works and generate useful technological inventions.44
Other federal IP laws, covering subjects such as trademarks and trade secrets, are enacted under
the Commerce Clause, which grants Congress authority “[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.”45 These IP laws are less
centrally concerned with promoting creative activity, but are an aspect of Congress’s power to
regulate economic activity and establish rules for fair competition. For example, trademarks
protect consumers and lower search costs by preventing businesses from misrepresenting the
source of goods or services,46 while trade secrets serve both to encourage innovation and to
prevent unfair means of competition between businesses.47
Patents
Any person who invents or discovers “any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof” may apply for a patent under
U.S. law.48 Patents may be granted for almost any type of technology made by humans, save for
laws of nature, abstract ideas, and natural phenomena.49 For example, innovations in
pharmaceutical drugs, biotechnology, chemistry, computer hardware and software, electrical
engineering, agriculture, mechanical engineering, and manufacturing processes may be
patented.50
To obtain a patent, the inventor must file a formal application with the U.S. Patent and Trademark
Office (PTO).51 The process for obtaining a patent, called “patent prosecution,”52 is fairly
demanding. The patent application must contain a written specification that describes the claimed
invention with enough detail that a person skilled in the relevant technical field can make and use
the invention.53 During prosecution, a PTO patent examiner reviews the application to determine
whether the claimed invention is (1) directed at patent-eligible subject matter, (2) useful, (3) new,

ANALYSIS AND INTERPRETATION, CONG. RSCH. SERV., https://constitution.congress.gov/browse/essay/artI_S8_C8_ _
1 1/
(last visited Aug. 10, 2020).
44 See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (“[Copyrights and patents are]
intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the
public access to the products of their genius after the limited period of exclusive control has expired.”).
45 U.S. CONST. art I., § 8, cl. 3. Protection for trademarks and trade secrets may also be available under state laws.
46 Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159, 163–64 (1995) (“[T]rademark law, by preventing others from
copying a source-identifying mark, reduces the customer’s costs of shopping and making purchasing decisions . . . . At
the same time, the law helps assure a producer that it (and not an imitating competitor) will reap the financial,
reputation-related rewards associated with a desirable product.” (citations and internal quotations omitted)).
47 Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481 (1974) (“The maintenance of standards of commercial ethics
and the encouragement of invention are the broadly stated policies behind trade secret law.”).
48 35 U.S.C. § 101.
49 See Alice Corp. Pty. v. CLS Bank Int’l, 573 U.S. 208, 216–17 (2014); Diamond v. Chakrabarty, 447 U.S. 303, 309–
10 (1980); see generally CRS Report R45918, Patent-Eligible Subject Matter Reform in the 116th Congress, by Kevin
J. Hickey, at 10–20 (reviewing current law of patent-eligible subject matter).
50 See Patent Technology Centers Management, U.S. PATENT & TRADEMARK OFF., https://www.uspto.gov/patent/
contact-patents/patent-technology-centers-management (last visited Aug. 10, 2020) (listing technological divisions for
PTO examiners).
51 35 U.S.C. § 111.
52 See General Information Concerning Patents, U.S. PATENT & TRADEMARK OFF. (Oct. 2015), https://www.uspto.gov/
patents-getting-started/general-information-concerning-patents.
53 35 U.S.C. § 112(a); Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1343–45 (Fed. Cir. 2010) (en banc).
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(4) nonobvious, and (5) adequately disclosed and claimed in the patent application.54 If the
examiner finds these requirements met, the PTO will issue (i.e., grant) the patent.55
If the PTO grants the patent, the patent holder has the exclusive right to make, use, sell, offer to
sell, or import the invention in the United States until the patent expires.56 Patents typically expire
twenty years after the initial patent application is filed.57 Any other person who makes, uses, sells,
or imports the invention without the patent holder’s permission is said to “infringe” the patent and
is potentially legally liable.58 To enforce the patent, the patent holder may sue alleged infringers
in federal court to seek an injunction (i.e., a judicial order to cease infringing activity), damages,
and other remedies.59 Patents are presumed to be valid,60 but accused infringers may defend
against lawsuits by asserting, among other things, (1) noninfringement (i.e., their allegedly
infringing actions were not covered by the patent), or (2) invalidity (i.e., the patent should not
have issued because, for example, the claimed invention was not new).61
Copyrights
Copyright grants creators of “original works of authorship” a set of exclusive rights in their
creative works.62 Forms of expression that are copyrightable include literary works (such as
books and computer code); musical works and sound recordings; pictorial, graphic, and sculptural
works; audiovisual works (such as movies and television); and architectural works.63 The key
requirements for a copyright are that the work is independently created, at least minimally
creative, and fixed in some tangible form.64 Copyright does not extend to ideas, processes,
systems, discoveries, or methods of operation.65
Copyright attaches once a work is created and fixed in a tangible medium of expression (e.g.,
recorded in a computer file or on a piece of paper).66 In contrast to patents, the author of a
copyrightable creative work need not apply with the government to obtain a copyright.67
However, for U.S. works, copyright holders must register their copyrights with the U.S.
Copyright Office before they can sue in federal court.68 The registration process requires

54 35 U.S.C. §§ 101–103, 112.
55 Id. § 131.
56 Id. § 271(a).
57 Id. § 154(a)(2).
58 Id.
59 Id. §§ 281, 283–285.
60 Id. § 282(a); Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 95 (2011).
61 35 U.S.C. § 282(b).
62 17 U.S.C. §§ 102(a), 106.
63 Id. § 102(a)(1)–(8).
64 Id. § 102(a); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345–47 (1991).
65 17 U.S.C. § 102(b); see also Baker v. Selden, 101 U.S. 99, 102–04 (1880).
66 Id. § 102(a).
67 Id. §§ 102(a), 408(a).
68 Id. § 411(a). Although a copyright holder may bring a claim in court even if the Copyright Office refuses to register
the work, see id., the Copyright Office must either register the work or refuse registration before the copyright holder
can file suit. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019).
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submitting an application, paying a fee, and sending a copy or copies of the work to the
Copyright Office.69
Copyright holders generally have the exclusive right to reproduce the work, publicly perform and
display it, distribute it, and prepare derivative works from it.70 Any person who takes one of those
actions without the permission of the copyright owner is potentially legally liable for copyright
infringement.71 For most works created today, copyright does not expire until seventy years after
the death of the work’s author.72 Once a copyright holder registers the copyright, she may sue
infringers in federal court to seek injunctions, damages, and other legal remedies.73 In addition to
these civil remedies, certain willful copyright infringements may be criminal offenses.74
The exclusive rights of a copyright holder are subject to many specific limitations and
exceptions.75 The most important limitation is the doctrine of fair use, which permits certain
socially valuable uses that would otherwise be infringements (e.g., using portions of a
copyrighted work in a criticism, parody, or educational instruction).76 Courts consider a number
of factors to evaluate whether a use is fair, such as (1) the purpose and character of the use;
(2) the nature of the original work; (3) the substantiality of what was copied; (4) any market harm
from the use; and (5) whether the use is “transformative,” that is, whether it adds new expression,
has a different purpose, or alters the original work with new expression or meaning.77
Trademarks
In general, any “word, name, symbol, or device” may be used as a trademark or service mark to
identify a particular business’s goods or services.78 Familiar examples of trademarks include
brand names and logos such as NIKE and its “swoosh” symbol.
The availability of trademark protection depends on the distinctiveness of the proposed mark.79
Generic terms (i.e., a common descriptive name for a particular type of product80) and deceptive
terms (i.e., those that materially misrepresent the product81) may not be registered or protected as
a trademark.82 Descriptive terms (i.e., those that convey information about the qualities of the
product83), surnames, and geographically descriptive marks generally cannot be registered or

69 17 U.S.C. §§ 407–410; U.S. COPYRIGHT OFFICE, CIRCULAR 2: COPYRIGHT REGISTRATION (2019),
https://www.copyright.gov/circs/circ02.pdf.
70 17 U.S.C. § 106(1)–(6).
71 Id. §§ 106, 501(a).
72 Id. § 302(a). Copyright in works made for hire (which often have corporate authors) as well as anonymous or
pseudonymous works last for 95 years after the work’s publication or 125 years after its creation, whichever term is
shorter. Id. § 302(c).
73 Id. §§ 501–505.
74 Id. § 506(a); 18 U.S.C. § 2319.
75 See 17 U.S.C. §§ 108–122.
76 See id. § 107; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575–78 (1994).
77 17 U.S.C. § 107(1)–(4); Campbell, 510 U.S. at 579.
78 5 U.S.C. § 1127 (defining “trademark” and “service mark”).
79 Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992); Abercrombie & Fitch Co. v. Hunting World, Inc.,
537 F.2d 4, 9–11 (2d Cir. 1976) (Friendly, J.).
80 Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985).
81 In re Budge Mfg. Co., Inc., 857 F.2d 773, 775 (Fed. Cir. 1988).
82 15 U.S.C. §§ 1052(a), 1052(e), 1064(3); Two Pesos, 505 U.S. at 768–69.
83 Park ’N Fly, 469 U.S. at 194.
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protected as a trademark unless such terms acquire an association by consumers with a particular
source of a product: so-called “secondary meaning.”84 For example, Coca-Cola (a drink originally
made with coca leaves and cola nuts) might not have been initially protectable because its brand
name was descriptive of the product. Yet, the mark subsequently became protectable when the
public began to associate the mark with a particular producer.85 Arbitrary terms (i.e., terms that in
no way describe the goods or service86) and merely suggestive terms are “inherently distinctive”
and may be registered and protected as marks without a showing of secondary meaning.87
Certain federal trademark rights are available based on actual use of (or a bona fide intent to use)
a mark in commerce.88 Because federal law does not generally preempt state laws protecting
trademarks,89 rights under applicable state trademark laws may be available as well, based either
on use of the mark or state registration.90
To obtain presumptive nationwide federal trademark rights, a business must first register the mark
with the PTO.91 Along with the distinctiveness requirements discussed above, the PTO will only
register marks that are not confusingly similar to marks that others have already registered.92 Each
trademark registration is tied to the use of a mark with particular categories of goods or services
(e.g., clothing, vehicles, or telecommunications services).93 Thus, different owners may use an
identical or similar mark for different types of products (e.g., Delta Airlines and Delta faucets), so
long as this parallel use would not confuse consumers.94
Owners of valid trademarks generally have the right to prevent other businesses or persons from
using similar marks to identify their products if the use is likely to cause consumer confusion as
to the product’s source.95 Trademark owners may sue in federal or state court to obtain

84 15 U.S.C. § 1052(e)(1)–(2), (e)(4), (f); Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 210–11 (2000);
Two Pesos, 505 U.S. at 769.
85 See Coca-Cola Co. v. Koke Co. of Am., 254 U.S. 143, 146–47 (1920).
86 See 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:11, What Are Arbitrary Word Marks? (5th ed.
2019).
87 Wal-Mart Stores, 529 U.S. at 210–11; Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 11 (2d Cir.
1976).
88 See 15 U.S.C. §§ 1125(a), 1127; Two Pesos, 505 U.S. at 768.
89 See Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 232 (1964); Dorpan, S.L. v. Hotel Melia, Inc., 728 F.3d 55,
62 (1st Cir. 2013); BOYLE & JENKINS, supra note 40, at 106.
90 See generally 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION ch. 22, State Protection and Registration of
Marks (5th ed. 2019); State Trademark Information Links, U.S. PATENT & TRADEMARK OFF., https://www.uspto.gov/
trademarks-getting-started/process-overview/state-trademark-information-links (last visited Aug. 18, 2020).
91 See 15 U.S.C. §§ 1051, 1057(b).
92 Id. § 1052(d). Moreover, certain types of marks may not be registered pursuant to specific statutory exceptions,
including (1) marks that falsely suggest a connection with persons or institutions; (2) the names of living persons
without their consent; and (3) marks consisting of the U.S., state, or municipal flags. See id. § 1052(a)–(c). Federal law
also purports to bar the registration of marks that contain “immoral, deceptive, or scandalous matter” or those that “may
disparage” persons and institutions, but the Supreme Court has invalidated these provisions on First Amendment
grounds. Iancu v. Brunetti, 139 S. Ct. 2294, 2297 (2019); Matal v. Tam, 137 S. Ct. 1744, 1751, (2017).
93 15 U.S.C. § 1051(a)(2); see 37 C.F.R. §§ 2.85(a), 6.1.
94 15 U.S.C. § 1052(d); BOYLE & JENKINS, supra note 40, at 104–05; Barton Beebe & Jeanne C. Fromer, Are We
Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion, 131 HARV. L. REV. 945,
952 & n.22 (2018).
95 15 U.S.C. §§ 1114(1), 1125(a); KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117
(2004). In determining whether consumers are likely to be confused by two similar marks, courts consider a number of
factors, such as (1) strength of the mark; (2) similarity of the marks; (3) proximity of the products; (4) evidence of
actual confusion; (5) the defendant’s intent in selecting the mark; (6) the type of goods and sophistication of the
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injunctions, damages, and other legal remedies.96 In addition to civil remedies, intentional
trafficking in goods or services using a counterfeited mark is a federal criminal offense.97 If
properly renewed and maintained, trademark rights may last indefinitely.98
Trade Secrets
Trade secret law protects competitively valuable, confidential information. Trade secrets include
“all forms and types of financial, business, scientific, technical, economic, or engineering
information” where (1) the owner has taken reasonable measures to keep the information secret;
and (2) the information derives actual or potential independent economic value from not being
generally known or readily ascertainable to another person (usually, a business competitor).99
Examples include secret recipes, formulas, financial information, source code, or manufacturing
processes. Matters of public knowledge or information generally known in an industry may not
be a trade secret.100
Until recently, trade secret protection was mainly a matter of state law.101 In 2016, Congress
passed the Defend Trade Secrets Act (DTSA), which created a federal civil remedy for trade
secret misappropriation.102 The DTSA built upon the Economic Espionage Act of 1996, which
criminalized economic espionage and certain thefts of trade secrets.103 Under the DTSA, the
misappropriation of a trade secret is a federal civil violation that may be remedied through a
lawsuit by the trade secret’s owner.104 Protection for trade secrets is also available under state
laws, which are generally similar to federal requirements.105

consumers; and (7) similarity of advertising or marketing. See, e.g., AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–
49 (9th Cir. 1979); Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cit. 1961); see generally Barton
Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 CAL. L. REV. 1581, 1587–90, 1591
tbl. 1 (2006) (summarizing the factors considered by different federal courts of appeals to determine the likelihood of
consumer confusion in trademark cases).
96 15 U.S.C. §§ 1116–1117; 28 U.S.C. § 1338(a).
97 See 18 U.S.C. § 2320(a). A “counterfeit mark” is a “spurious” mark that must be (1) identical to, or substantially
indistinguishable from, a registered mark; (2) used in connection with the same good or services as the registered mark;
and (3) likely to cause confusion, to cause mistake, or to deceive. Id. § 2320(h)(i)–(iv).
98 15 U.S.C. § 1058(a)–(b).
99 18 U.S.C. § 1839(3). Factors that courts may consider in determining whether information is a trade secret include
(1) the extent to which the information is known outside of the business; (2) the extent to which the information is
known by employees and others involved in the business; (3) the extent of measures taken by the owner to guard the
secrecy of the information; (4) the value of the information to the owner and the owner’s competitors; (5) the amount of
effort or money expended by the owner in developing the information; and (6) the ease or difficulty with which the
information could be properly acquired or duplicated by others. See RESTATEMENT (1ST) OF TORTS § 757 cmt. b. (AM.
LAW INST.1939).
100 18 U.S.C. § 1839(3)(B); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475 (1974) (“The subject of a trade secret
. . . must not be of public knowledge or of a general knowledge in the trade or business.”).
101 See BOYLE & JENKINS, supra note 40, at 769.
102 Pub. L. No. 114-153, § 2, 130 Stat. 376, 376–82 (2016) (codified at 18 U.S.C. §§ 1836(b)–(d), 1839).
103 Pub. L. No. 104-294, tit. I, 110 Stat 3488, 3488–91 (1996) (codified as amended at 18 U.S.C. §§ 1831–1839).
104 18 U.S.C. § 1832(b)(1).
105 Almost all the states have adopted the Uniform Trade Secrets Act in some form. See UNIF. TRADE SECRETS ACT
(Unif. Law Comm’n 1985) [hereinafter UTSA]; 1 MILGRIM ON TRADE SECRETS § 1.01[2][c][i] (2019) (noting that forty-
eight states have adopted UTSA, with local variations, as of 2018). The federal definitions of “trade secret,”
“misappropriation,” and “improper means” generally follow the UTSA. 1 MILGRIM ON TRADE SECRETS § 1.01[5]
(2019).
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Owners of commercially valuable information need not formally apply with federal or state
governments to obtain legal protection for an asserted trade secret. However, the owner must take
“reasonable measures” to keep the information secret.106 For example, an owner may restrict
access to the information within the business, require confidentiality agreements of employees or
any others who receive the information, or place the information on secure computer systems.107
Whether the measures taken are reasonable depends on the factual circumstances and the nature
of the information.108
The owner of a valid trade secret may not legally prevent all acquisitions, uses, and disclosures of
the information. Rather, federal and state law provide a remedy only when a trade secret is
“misappropriated.”109 There are two main forms of misappropriation. First, misappropriation
occurs when an unauthorized person acquires a trade secret through “improper means,” such as
theft, bribery, electronic espionage, or a breach of a duty to maintain secrecy (e.g., violation of a
nondisclosure agreement).110 Acquiring a trade secret through lawful means, such as reverse
engineering, or independently discovering the trade secret, is not a misappropriation.111 Second, a
person may not use or disclose a trade secret if that person knows or has reason to know that
(1) knowledge of the trade secret derives from a person who used improper means to acquire the
trade secret; (2) the trade secret was acquired under circumstances creating a duty to maintain
secrecy; or (3) knowledge of the trade secret derives from a person owing a duty to maintain
secrecy.112
Owners of trade secrets may sue in state or federal court to enjoin actual or threatened
misappropriations and obtain monetary damages for losses caused by misappropriations.113 Civil
seizures of property necessary to prevent the dissemination of a trade secret may be available in
extraordinary circumstances.114 The EEA also criminalizes two forms of trade secret
misappropriation: (1) economic espionage, which includes the unauthorized appropriation or
transmission of a trade secret with the intent to benefit a foreign government;115 and (2) theft of a
trade secret, which includes the unauthorized appropriation or transmission of a trade secret when
the offender knows that the act will injure the owner of a trade secret for the economic benefit of
another person.116
Overlap and Interactions Among Different Forms of IP
Table 1 summarizes the differences between patents, copyrights, trademarks, and trade secrets.
Although this section has presented each form of IP separately because they are legally distinct,
there is a degree of overlap in the subject matter that each form of IP protects. This can lead to
situations in which an owner must choose between different forms of IP protection. For example,

106 18 U.S.C. § 1839(3)(A).
107 See generally 1 MILGRIM ON TRADE SECRETS § 1.01[c][iii][D] (2019).
108 Id.
109 18 U.S.C. § 1836(b)(1); UTSA §§ 2(a), 3(a).
110 18 U.S.C. § 1839(5)(A), (6)(A). In addition, a person who used improper means to acquire a trade secret may not
disclose or use the trade secret without authorization. Id. § 1839(5)(B)(i).
111 Id. § 1839(6)(B).
112 Id. § 1839(B)(ii)(I)–(III).
113 Id. § 1836(b)(3)(A)–(B).
114 Id. § 1836(b)(2).
115 Id. § 1831(a).
116 Id. § 1832(a).
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the owner of a novel discovery may strategically decide whether to protect that information as a
trade secret or instead seek a patent.117 While trade secret protection covers a broader range of
information and potentially lasts longer than a patent, it provides narrower rights because it lacks
any protection against independent discovery or reverse engineering by third parties.118 By
applying for a patent, however, the owner gives up any claim to trade secret protection because
issued patents and patent applications are publicly available.119
In other situations, an individual may be able to protect the same information or product by
relying on multiple forms of IP protection. For example, computer code is eligible for copyright
protection as a literary work, yet the owner may also choose to keep the code as a trade secret.
Moreover, different aspects of a product may be protected by different types of IP rights, such as
a patented pharmaceutical product with a trademarked brand name.
There is no general one-to-one correspondence between IP protection and a particular consumer
product. For example, the various technologies within a typical smartphone (e.g., computer
hardware and software, design, and networking) are protected by many thousands of different
patents,120 along with the copyrighted computer code of the operating system and various
applications. Valuable pharmaceutical products are often protected by dozens of different patents
relating to the active ingredient, formulations, administration, methods of treatment, or methods
of manufacturing the drug.121

117 See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 485–92 (1974).
118 Compare 35 U.S.C. § 271(a) (patentee has the exclusive right to make, use, and sell the patented invention), with 18
U.S.C. § 1839(6) (permitting reverse engineering and independent derivation of trade secrets).
119 35 U.S.C. §§ 10, 122(b), 153; 37 C.F.R. §§ 1.11(a), 1.211.
120 Steve Lohr, Apple-Samsung Patent Battle Shifts to Trial, N.Y. TIMES (July 29, 2012), https://www.nytimes.com/
2012/07/30/technology/apple-samsung-trial-highlights-patent-wars.html.
121 See CRS Report R45666, Drug Pricing and Intellectual Property Law: A Legal Overview for the 116th Congress,
coordinated by Kevin J. Hickey, at 12–14.
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Table 1. Comparison of Each Form of Federal Intellectual Property Protection

Patent
Copyright
Trademark
Trade Secret
Constitutional
IP Clause (U.S.
IP Clause (U.S.
Commerce Clause
Commerce Clause
Basis
CONST. art. I, § 8,
CONST. art. I, § 8,
(U.S. CONST. art. I,
(U.S. CONST. art. I,
cl. 8)
cl. 8)
§ 8, cl. 3)
§ 8, cl. 3)
Statutory Basis 1952 Patent Act, as
1976 Copyright Act,
1946 Lanham Act,
DTSA and Economic
amended, 35 U.S.C.
as amended, 17
as amended, 15
Espionage Act of
§§ 1–390
U.S.C. §§ 101–1332
U.S.C. §§ 1051–
1996, 18 U.S.C.
1141n
§§ 1831–1839
Initial Rights
Inventor
Author
Business or person
Owner of
Holder
using mark to
commercially
identify goods or
valuable, confidential
services
information
Subject Matter
New and useful
Original works of
Any word, name,
Financial, business,
processes, machines,
authorship
symbol, or device
scientific, technical,
manufactures, or
used to identify
economic, or
compositions of
goods or services
engineering
matter
information
Subject Matter
Pharmaceuticals,
Books, musical
Brand names, logos, Formulas, source
Examples
engineering,
works, movies, fine
distinctive trade
code, prototypes,
manufacturing
art, architecture,
dress
customer lists,
processes
software
financial information
Requirements
Novelty;
Independent
Use in commerce;
Information derives
for Protection
nonobviousness;
creation; minimal
registration (for
economic value from
utility; first to file
creativity; fixation
presumptive
not being generally
nationwide rights)
known
Excluded From Laws of nature,
Any idea, procedure,
Generic terms;
Information generally
Protection
natural phenomena,
process, system,
deceptive terms;
known,
and abstract ideas
method of operation, descriptive terms
independently
concept, principle, or that lack secondary
discovered, reverse
discovery
meaning
engineered, or
lawful y acquired
Process to
PTO patent
Create and fix the
PTO trademark
Take reasonable
Secure Rights
application process
work (registration is
registration process measures to keep
(patent prosecution) required to sue)
information secret
Exclusive
To make, use, offer
To reproduce,
Prevent confusingly
Prevent others from
Rights Granted to sell, sell, and
distribute, or publicly similar uses of the
misappropriating
import the patented
perform/display the
mark
trade secret (e.g.,
invention
work, and make
acquisition through
derivative works
improper means)
Duration
20 years from date
Life of author plus 70 Potentially indefinite Potentially indefinite
of application
years
Infringement
Practice the claimed
Substantially similar
Likely to confuse
Misappropriation
Test
invention
to original
consumers
Main Defenses
Invalidity;
Fair use; lack of
Fair use; nominative Information was not
noninfringement;
substantial similarity
use; lack of
a trade secret or was
inequitable conduct
confusion
not misappropriated
Source: Congressional Research Service.
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Forms of “IP Theft”
“IP theft” and “stealing IP” are colloquial terms, not legal concepts. Strictly speaking, most forms
of IP (with the important exception of trade secrets) cannot be “stolen.” A patent, for example, is
a publicly available legal document granting the patent holder certain exclusive rights; another
person might infringe the patent (e.g., by making and selling the patented invention without
permission), but infringers do not “steal” the patent. Nor does IP law necessarily preclude persons
other than the IP owner from using or acquiring protected information without permission; third
parties may lawfully reverse engineer a trade secret, for example, or make a fair use of a
copyrighted work.122 Rather, the colloquial usage of “IP theft” usually seeks to capture concerns
about varied laws, policies, and practices of—in the context of this report—the Chinese
government and other Chinese entities related to IP and technology transfer, which harm U.S. IP
rights holders.123 This section describes several forms that these IP-related violations may take.
Under-Protection
One way in which a foreign nation might undermine IP rights is through a lack of substantive
legal protections for IP available under that country’s domestic law. Under the WTO Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS), all members of the WTO
(including the United States and China) agree to certain minimum standards for IP protection and
enforcement.124 First, members agree to provide, under their domestic laws, a basic level of
substantive protection for copyrights, trademarks, patents, trade secrets, and other forms of IP.125
Second, members agree to ensure that certain minimum civil, criminal, and administrative
procedures to enforce IP rights are available to permit effective action against infringements.126
Members further agree to provide “national treatment,” a nondiscrimination principle under
which each WTO member must treat nationals of other members no less favorably than they treat
their own citizens with respect to IP rights.127
TRIPS’s substantive provisions set forth required minimum levels of IP protection. For example,
with respect to trademarks, members agree that “any sign . . . capable of distinguishing [the]
goods or services” of a business shall be eligible for trademark registration, subject to limited
exceptions.128 Owners of valid registered trademarks must have the right to exclude others from
“using in the course of trade identical or similar signs for goods or services [where] such use
would result in a likelihood of confusion.”129 Initial trademark registrations must last for at least

122 See 17 U.S.C. § 107; 18 U.S.C. § 1839(6)(B).
123 See, e.g., SECTION 301 INVESTIGATION REPORT, supra note 8, at 4.
124 See TRIPS, supra note 41; see generally Ilias Akhtar et al., supra note 3, at 15–17.
125 TRIPS, supra note 41, pt. II. Geographical indications, industrial design, and integrated circuit design are the other
forms of IP that must be protected by WTO members under TRIPS. Id. TRIPS explicitly incorporates by reference
many of the provisions of earlier (and still in force) IP treaties, such as the Paris Convention for the Protection of
Industrial Property, Mar. 20, 1883, revised at Stockholm July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305, and the
Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised at Paris July 24, 1971, 1161
U.N.T.S. 3. See, e.g., TRIPS, supra note 41, arts. 1–3, 9, 15–16, 39.
126 TRIPS, supra note 41, pt. III.
127 Id. arts. 1, 3. A similar but distinct nondiscrimination principle required by TRIPS is known as “most-favored nation
treatment,” which generally requires that if a member extends to the nationals of one country any advantage relating to
the availability, acquisition, scope, maintenance, and enforcement of IP, it must also extend that same privilege to the
nationals of all other members. Id. art. 4.
128 Id. art. 15.
129 Id. arts. 16–17.
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seven years, and must be renewable indefinitely.130 If a WTO member were to, for example,
provide a shorter initial term or a nonrenewable term of trademark registration, that nation would
fail to meet the minimum substantive standards set forth in TRIPS.
Concerns about China failing to meet its WTO obligations with respect to IP are long-standing.
TRIPS, which first went into effect in 1996, became applicable to China after its accession to the
WTO in 2001.131 In 2007, the United States initiated a dispute against China before the WTO,
alleging inadequacies in China’s substantive IP laws and its enforcement of those laws.132 After
the United States prevailed on several of its claims,133 China agreed to implement the WTO’s
ruling in the dispute by March 2010.134
U.S. stakeholders continue to lodge complaints about whether China’s domestic laws meet
TRIPS’s substantive requirements,135 while acknowledging progress by China in recent years.136
Since 2005,137 the USTR has placed China on the Priority Watch List, indicating “that particular
problems exist in that country with respect to IP protection, enforcement, or market access for
persons relying on IP.”138 Specifically, the USTR found that China has an “urgent need for
fundamental structural changes to strengthen IP protection and enforcement, including as to trade
secret theft, online piracy and counterfeiting, the high volume manufacture and export of
counterfeit goods, and impediments to pharmaceutical innovation.”139 The USTR has also
designated many online or physical markets based in China as “notorious markets”140 that are
“prominent and illustrative examples of online and physical marketplaces that reportedly engage
in and facilitate substantial piracy and counterfeiting.”141 In its most recent Special 301 Report,142
the USTR concluded that although China reorganized its IP protection and enforcement
authorities and made progress in some areas, ultimately its actions “fell short of needed
fundamental changes to the IP landscape in China.”143

130 Id. art. 18.
131 See 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 2, 107.
132 Request for Consultations by the United States, China—Measures Affecting the Protection and Enforcement of
Intellectual Property Rights, WTO Doc. WT/DS362/1 (Apr. 16, 2007).
133 Panel Report, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WTO
Doc. WT/DS362/R (adopted Jan. 26, 2009).
134 Communication from China and the United States concerning Article 21.3(b) of the [WTO Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)], China—Measures Affecting the Protection and
Enforcement of Intellectual Property Rights, WTO Doc. WT/DS362/13 (July 3, 2009); see generally CRS China-U.S.
Trade Report, supra note 4, at 53; Devon Spencer, Not in It for the Long Run: China’s Solution for Compliance with
TRIPS Requires More Than a Nine-Month Campaign, 19 U. MIAMI INT’L & COMP. L. REV. 197, 211–18 (2012).
135 See generally 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 107–13
136 See, e.g., CRS China-U.S. Trade Report, supra note 4, at 40–41 (citing surveys of IP holders finding that, although
many find the IP enforcement environment in China to be ineffective or inadequate, over 90% believed the IP
environment in China had improved between 2009 and 2016).
137 International Intellectual Property Alliance, History of USTR’s Special 301 Decisions Since 1989 (Feb. 7, 2019),
https://iipa.org/files/uploads/2019/02/2019SPEC301HISTORICALCHART.pdf.
138 2019 SPECIAL 301 REPORT, supra note 32, at 8.
139 Id. at 6.
140 OFF. OF THE U.S. TRADE REPRESENTATIVE, 2018 OUT-OF-CYCLE REVIEW OF NOTORIOUS MARKETS 16–17, 22–23,
(2019), https://ustr.gov/sites/default/files/2018_Notorious_Markets_List.pdf.
141 Id. at 2.
142 See discussion infra in “Section 301 of the Trade Act of 1974” (discussing Special 301 authority).
143 2019 SPECIAL 301 REPORT, supra note 32, at 41.
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For example, as to the substantive level of IP protection afforded by Chinese law, the USTR has
asserted that
 China fails to provide adequate patent protection for pharmaceutical products
by imposing unduly restrictive and “opaque” patent examination
procedures;144
 China fails to impose adequate criminal liability for copyright infringement
through high monetary thresholds and profit motive requirements;145
 China’s trade secret law may exclude some types of proprietary information,
and is limited to actions of commercial entities (rather than any legal
person);146 and
 China has failed to make clear that sports and other live broadcasts are
eligible for copyright protection in China.147
Such substantive legal shortcomings could conceivably be the basis of a WTO complaint based
on TRIPS noncompliance,148 or other remedies discussed below. Notably, the Phase One
Agreement addresses some of these issues.149
Infringement and Under-Enforcement
Together with its provisions for minimum levels of substantive IP protection, TRIPS also sets
forth minimum standards for IP enforcement by WTO members.150 Presuming that a nation’s IP
laws meet TRIPS’s minimum substantive standards, IP rights may still be undermined if a nation
does not adequately enforce those IP laws. For example, a nation may lack adequate institutions
or procedures, such as an effective and fair court system, that are necessary to vindicate IP rights.
TRIPS requires that WTO members have enforcement procedures that “permit effective action”
against infringements of IP rights.151 For example, members must make “fair and equitable” civil
judicial procedures available to IP rights holders.152 These judicial authorities must have authority
to grant effective and adequate relief, including injunctions and damages.153 For counterfeit
trademarked goods and pirated copyrighted goods, members must establish border control
procedures through which rights holders may apply to customs authorities to block the
importation of infringing goods.154 For cases of willful trademark infringement or copyright
piracy “on a commercial scale,” members must establish criminal procedures and penalties.155

144 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 110–11; 2019 SPECIAL 301 REPORT, supra note 32, at 44–
45.
145 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 108.
146 Id. at 109; 2019 SPECIAL 301 REPORT, supra note 32, at 41–42.
147 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 108; 2019 SPECIAL 301 REPORT, supra note 32, at 45.
148 See discussion infra in “TRIPS and WTO Disputes.”
149 See supra notes 15–29 and accompanying text.
150 TRIPS, supra note 41, pt. III.
151 Id. art. 41.1.
152 Id. arts. 41–42.
153 Id. arts. 44–45.
154 Id. arts. 51–60.
155 Id. art. 61.
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As with the substantive aspects of TRIPS, U.S. rights holders have long maintained that Chinese
authorities fail to enforce existing IP laws adequately, or that China lacks effective procedures
and institutions for rights holders to enforce their IP rights.156 Two areas of continuing concern
about China’s IP enforcement environment are (1) the manufacture, sale, and export of
counterfeit trademarked goods (counterfeiting); and (2) unauthorized copying, performance, and
distribution of copyrighted works, particularly online (piracy).
As to trademark counterfeiting, a 2019 study of customs seizures by the Organization for
Economic Co-operation and Development (OECD) and the EU Intellectual Property Office
(EUIPO) found that China was the world’s leading source of counterfeit goods.157 Together with
Hong Kong (through which exported Chinese merchandise often transships), China was the
source of over 63% of counterfeited and pirated exports, representing $322 billion in value.158
The United States was the largest victim of these infringements, with nearly 25% of seized
counterfeits affecting IP rights registered in the United States.159 Looking just at seizures by U.S.
authorities, China (together with Hong Kong) was the origin of 87% of the goods seized by U.S.
Customs and Border Protection for IP violations in FY2018, representing $1.2 billion in retail
value.160 Trademark counterfeiting by Chinese entities encompasses a vast array of goods,
including apparel and footwear, toys, sporting goods, and other consumer products.161 On top of
the harms that counterfeiting has on trademark holders, counterfeit goods may also create health
and safety concerns, as in the case of counterfeit pharmaceuticals, food and beverages,
semiconductors, and automotive parts.162
Piracy of copyrighted works is a second area of long-standing concern for U.S. rights holders.
The internet is an efficient vehicle enabling the unauthorized distribution of copyrighted movies,
music, software, and television programs in China, as well as other nations.163 The USTR reports
that copyright piracy is “widespread” in China, particularly online.164 For example, the Business
Software Alliance’s most recent study found that 66% of all software in China is unlicensed (that
is, used without permission from the copyright holder), representing $6.8 billion in commercial

156 See generally CRS China-U.S. Trade Report, supra note 4, at 39–43.
157 OECD & EUIPO, TRENDS IN TRADE IN COUNTERFEIT AND PIRATED GOODS 12, 27–28 (2019). OECD defines
“counterfeit and pirated goods” broadly, see id. at 14, so its estimates include goods that violate patents, design rights,
and copyrights, as well as trademarks. The study’s list of the most affected industries (footwear, clothing, leather,
watches, cosmetics), id. at 31, suggests that trademark infringements are a substantial component of these estimates.
158 Id. at 46.
159 Id. at 32–33.
160 U.S. CUSTOMS & BORDER PROT., INTELLECTUAL PROPERTY RIGHTS: FISCAL YEAR 2018 SEIZURE STATISTICS 16, 24
(2019), https://www.cbp.gov/sites/default/files/assets/documents/2019-Aug/IPR_Annual-Report-FY-2018.pdf
[hereinafter FISCAL YEAR 2018 SEIZURE STATISTICS]. These statistics aggregate seizures for both trademark and
copyright infringement, see id. at 6, 13, but the top categories of products seized (apparel, footwear, watches,
handbags), id. at 17, suggest that trademark infringements are a substantial component of these estimates.
161 2019 SPECIAL 301 REPORT, supra note 32, at 24.
162 Id. at 24–25; 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 116–17.
163 2019 SPECIAL 301 REPORT, supra note 32, at 22; 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 18.
164 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 116.
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value.165 China is also a leading source and exporter of websites and software that facilitate
copyright piracy.166
Trade Secret Misappropriation and Cyber Intrusions
Improper acquisition and disclosure of trade secrets represents another way that Chinese entities
and its government may harm U.S. IP rights holders. Because trade secret law generally requires
a misappropriation to be actionable—such as acquisition of a trade secret through theft, bribery,
breaches of contractual duties, or electronic espionage167—this type of IP violation fits more
naturally within a “theft” paradigm than other IP infringements.
Trade secret misappropriation by Chinese entities takes many forms. Perhaps the most direct
means of improperly acquiring a trade secret is through unauthorized intrusion by Chinese
entities into U.S. firms’ computer networks to obtain confidential business information.168 The
USTR has found that China’s government conducts or supports many of these cyber intrusions.169
Several industries targeted by China—such as information technology, aerospace, and energy—
match those identified as key areas in China’s state-led industrial policies.170 According to the
USTR, “[a]s the global economy has increased its dependence on information systems . . . cyber
theft became one of China’s preferred methods of collecting commercial information because of
its logistical advantages and plausible deniability.”171
Trade secret misappropriations by Chinese entities extend beyond hacking and cyber intrusions,
however. In other situations, current or former employees of a business, such as locally hired
engineers of U.S. entities doing business in China, may disclose trade secrets to Chinese
authorities or competitors without authorization.172 Chinese entities also allegedly use means such
as physical intrusions, bribery, fraud, breach of confidentiality agreements, or misrepresentation
to acquire trade secrets.173 For example, U.S. authorities have raised concerns about unauthorized
disclosures to Chinese entities of confidential biomedical research proposals submitted to the
National Institutes of Health, allegedly in violation of peer review confidentiality agreements.174
Although trade secret misappropriation is itself a civil and potentially criminal violation under
U.S. law,175 other civil and criminal laws may be implicated as well, depending on the means used
to acquire the trade secret. For example, as discussed below, unauthorized cyber intrusions may

165 SOFTWARE ALL., SOFTWARE MANAGEMENT: SECURITY IMPERATIVE, BUSINESS OPPORTUNITY, BSA GLOBAL
SOFTWARE SURVEY 7, 10, 12 (2018), https://gss.bsa.org/wp-content/uploads/2018/06/2018_BSA_GSS_Report_A4_
en.pdf.
166 2019 SPECIAL 301 REPORT, supra note 32, at 44.
167 18 U.S.C. §§ 1836(b), 1839(5)–(6).
168 SECTION 301 INVESTIGATION REPORT, supra note 8, at 153–76.
169 Id. at 153.
170 See id. at 11–13, 156.
171 Id. at 154.
172 See 2019 SPECIAL 301 REPORT, supra note 32, at 18; 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 115.
173 See Keith Bradsher, How China Obtains American Trade Secrets, N.Y. TIMES (Jan. 15, 2020),
https://www.nytimes.com/2020/01/15/business/china-technology-transfer.html; CRS China-U.S. Trade Report, supra
note 4, at 42–43; 18 U.S.C. § 1839(5)–(6).
174 See CRS Insight IN11207, Foreign Interference in NIH Research: Policy Implications, by Kavya Sekar; Gina
Kolata, Vast Dragnet Targets Theft of Biomedical Secrets for China, N.Y. TIMES (Nov. 4, 2019),
https://www.nytimes.com/2019/11/04/health/china-nih-scientists.html.
175 See 18 U.S.C. §§ 1831–1832, 1836.
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be a crime under the Computer Fraud and Abuse Act or other anti-hacking laws.176 Similarly,
obtaining trade secrets through unauthorized physical intrusions or bribery may violate various
state or federal laws (e.g., burglary or fraud), depending on the circumstances. As discussed
below, however, the ability of U.S. authorities to exercise jurisdiction over the person and
violation represents a significant limitation on remedies for these crimes.177
Traditional trade secret misappropriation does not reach all of the various means that Chinese
entities use to obtain technology and other know-how from U.S. firms. Coercive technology
transfer and regulatory extraction, discussed below,178 may or may not be a trade secret violation
depending on the circumstances. Strategic acquisition of U.S. firms by Chinese corporations to
acquire technology is another means of acquisition that does not generally represent a trade secret
violation, but still may raise national security or other legal concerns.179
Coercive Technology Transfer
Acquisition of trade secrets and technology by Chinese entities may take somewhat subtler forms
than outright misappropriations like cyber intrusions or physical theft. In its 2018 investigation
report conducted under Section 301,180 the USTR describes China’s industrial policies and
practices concerning IP and other technological know-how as an “unfair technology transfer
regime.”181 The USTR characterizes this “regime” of coerced technology transfer, applicable to
U.S. and other foreign entities seeking to do business in China, as taking two main forms. First,
China uses formal and informal foreign ownership restrictions to pressure transfer of technology
to Chinese entities, effectively as a condition of foreign companies doing business in China.182
Second, China uses regulatory licensing requirements to force technology transfer in exchange
for various administrative approvals needed to conduct business in China.183
The first form of coercive technology transfer concerns Chinese foreign investment restrictions,
such as requirements that foreign businesses seeking to enter the Chinese market form a joint
venture (JV) with Chinese entities or state-owned enterprises. Under Chinese law, foreign
companies in certain industries may not enter the Chinese market unless they partner with a
Chinese company.184 The Chinese JV partner or Chinese governmental entities may, informally or
formally, require or pressure technology transfer from the foreign entity to the Chinese partner as
a condition of concluding the partnership deal and obtaining access to the Chinese market.185
Moreover, in some cases, the Chinese JV partner or its employees may have ties to the Chinese

176 See discussion infra in “Computer Fraud and Abuse Act.”
177 See discussion infra in “Remedial Issues: Jurisdiction and Territoriality.”
178 See discussion infra in “Coercive Technology Transfer.”
179 See CRS China-U.S. Trade Report, supra note 4, at 28–29.
180 See discussion infra in “Section 301 of the Trade Act of 1974.”
181 SECTION 301 INVESTIGATION REPORT, supra note 8, at 19. The Report uses the term “technology” broadly to
encompass not just information protected by patents, copyrights, trademarks, and trade secrets, but also “know-how”
such as “production process, management techniques, expertise, and the knowledge of personnel” even if not legally
protected as IP. Id. at 6.
182 Id. at 19.
183 Id.
184 Id. at 23–24. Depending on the industry, the Chinese party may be required to be the controlling shareholder. Id. at
24–29.
185 Id. at 21–24.
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partner’s existing operations, which may compete with the JV operation.186 In such a situation,
the JV’s technology or trade secrets may be misappropriated or leaked to the firm’s Chinese
competitors.187
The second form of coerced technology transfer relates to administrative licensing and regulatory
approvals required by China for companies to establish or expand operations in many industries,
such as food, drugs, mining, or telecommunications.188 In the abstract, there is nothing inherently
improper about the government regulating industries for health, safety, or environmental reasons.
However, the USTR has alleged that China leverages necessary regulatory approvals as a tool to
force technology transfer.189 For example, a company may disclose proprietary formulas and
designs to regulatory authorities to receive marketing approval, only to find that this sensitive
information is passed along to Chinese competitors.190 In other cases, the “expert panel” to which
companies submit sensitive technical information for regulatory approval consists not only of
governmental officials, but also of representatives from Chinese industry or academia with a
competitive interest in the technology.191
Discriminatory Restrictions on Contractual IP Licensing
Owners of most forms of IP can assign or license their rights to another person, just as tangible
property may be sold or leased to another party.192 For example, ownership of a copyright may be
transferred from one person to another by signed, written contract,193 usually in exchange for
compensation. The IP owner may also retain ownership and grant a license to another person, that
is, either exclusive or nonexclusive permission to use the IP.194 Thus, for example, a patent owner
may grant permission to another person to use and sell the patented invention through a contract
in exchange for money or other compensation (e.g., royalties), or a musician may sell or license
the rights in his work to a record company or a music publisher.195 Sale or licensure can be an
important way for IP owners to make money from their creations, especially for smaller entities
that may not have the resources to commercialize their IP themselves. If IP owners cannot freely
license their works at market rates, this may diminish the IP’s value.
In its Section 301 investigation report, the USTR found that Chinese laws, policies, and practices
preclude foreign entities from fairly negotiating market-based terms when licensing technology to
Chinese entities.196 Under Chinese law, foreign entities negotiating technology transfers or

186 Id. at 28.
187 Id.
188 Id. at 36–39.
189 Id.
190 Id. at 42–43
191 Id.
192 See, e.g., 17 U.S.C. § 201(d) (copyrights); 35 U.S.C. § 261 (patents); Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1002 (1984) (trade secrets). Trademarks may be assigned or licensed as well, but subject to limitations such as
prohibitions on “naked licensing” and “assignments in gross.” See generally 3 MCCARTHY ON TRADEMARKS AND
UNFAIR COMPETITION ch. 18, Assignment and Licensing of Trademarks (5th ed. 2019). 193 17 U.S.C. § 204(a).
193 17 U.S.C. § 204(a).
194 See License, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining a license as “permission . . . to commit some act
that would otherwise be unlawful”).
195 See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 121–22 (2007) (patent license agreement); Cohen v.
Paramount Pictures Corp., 845 F.2d 851, 852 (9th Cir. 1988) (copyright license agreement).
196 SECTION 301 INVESTIGATION REPORT, supra note 8, at 48–61.
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licenses are subject to different contractual restrictions than comparable provisions applicable to
Chinese entities.197 For example, Chinese regulations mandate that, in a technology license, a
foreign licensor cannot stop the licensee from making improvements to the technology, and the
Chinese licensee must own any such improvements made to the licensed technology.198 Thus, the
licensor cannot preclude the licensee from altering the licensed technology and then seeking a
patent on that improvement.199 In the context of JVs with Chinese entities, Chinese regulations
mandate that the contract be limited to a ten-year duration, but the Chinese entity must
nonetheless be granted the rights to use the technology in perpetuity.200 The USTR alleges that
these legally mandated licensing terms in effect put U.S. companies at a disadvantage relative to
Chinese entities, decrease the value that U.S. companies can obtain from licenses, and limit
foreign IP rights holders’ ability to control future uses of licensed technologies.201
As discussed in further detail below,202 on March 26, 2018, the United States filed a complaint
with the WTO over these discriminatory licensing practices, alleging that China (1) imposes
mandatory adverse contract terms that discriminate against and are less favorable to imported
foreign technology; and (2) denies foreign patent holders the ability to enforce their patent rights
against a Chinese JV partner even after a technology transfer contract ends.203 The proceedings
have been suspended since June 2019 at the request of the United States, although with brief
periods of activity to ensure the WTO panel’s authority does not lapse.204
Bad-Faith Assertion/Registration
Another form of harm to U.S. IP rights holders concerns the bad-faith over-enforcement of IP
rights. In some ways, this issue is the inverse of concerns about under-enforcement of IP rights;
instead of ignoring widespread infringement, the issue here relates to exploitation of the IP
system using specious claims that harm the legitimate interests of IP rights holders and users.
For example, bad-faith trademark registrations in China are an area of “growing concern.”205
Many U.S. brand owners have complained that third parties are registering large numbers of
marks in China that are identical or similar to existing, well-known U.S. brands.206 This practice
may harm the U.S. trademark holder in two ways. First, if the registrant uses the mark to establish
a business in China passing off its goods as those of the U.S. brand, this may confuse Chinese
consumers and harm U.S. rights holders in ways analogous to ordinary trademark infringement.207
Second, some bad-faith registrants have sought to “ransom” the mark to the U.S. rights holder,
forcing U.S. trademark holders to purchase their “own” rights back to avoid damage to their

197 Id. at 49–51.
198 Id. at 49.
199 Id.
200 Id. at 50.
201 Id. at 51–54.
202 See infra notes 231–237 and accompanying text.
203 Request for Consultations by the United States, China—Certain Measures Concerning the Protection of Intellectual
Property Rights, WTO Doc. WT/DS542/1 (Mar. 26, 2018).
204 See Communication from the Panel, China—Certain Measures Concerning the Protection of Intellectual Property
Rights, WTO Doc. WT/DS542/14 (June 18, 2020); Communication from the Panel, China—Certain Measures
Concerning the Protection of Intellectual Property Rights, WTO Doc. WT/DS542/10 (June 14, 2019).
205 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 110.
206 2019 SPECIAL 301 REPORT, supra note 32, at 42.
207 Id.
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brand.208 U.S. stakeholders do not view the existing trademark opposition process in China as
adequate to address concerns about bad-faith registration.209
Bad-faith assertion issues may also occur within the U.S. IP system. Chinese applications for
trademarks in the United States have surged recently, rising from 0.07% to 10.5% of all
trademark registration applications between 1985 and 2017.210 A recent empirical study found that
nearly 67% of trademark applications originating from China in 2017 in the apparel category
showed signs of being fraudulent because the registrants did not appear to intend to use the mark
in commerce.211 Even so, fraudulent trademarks harm U.S. rights holders through trademark
depletion (i.e., a decrease in the supply of available, effective trademarks) and “clutter” in the
Principal Register, the primary U.S. trademark registry.212 While the motivation for these
fraudulent trademark applications is unclear, some speculate it results from the cash incentives
offered by Chinese provincial governments for the registration of trademarks,213 and it may be
intended to harm U.S. competitiveness.214
State Sponsorship and IP Violations
IP violations also differ in terms of the actor who committed the alleged violation. In the context
of this report, a potentially relevant distinction is whether the IP violation was committed or
supported by the Chinese government or government-affiliated entities, or instead by private
Chinese individuals or entities not affiliated with or supported by the Chinese government. The
discussion above has generally used the term Chinese entities to include both governmental and
nongovernmental actors, in part because the complex relationship between the private sector in

208 2017 CHINA WTO COMPLIANCE REPORT, supra note 32, at 110.
209 2019 SPECIAL 301 REPORT, supra note 32, at 48.
210 See Fraudulent Trademarks: How They Undermine the Trademark System and Harm American Consumers and
Businesses: Hearing Before the S. Subcomm. on Intellectual Property of the S. Comm. on the Judiciary, 116th Cong.
17–18 (statement of Profs. Barton Beebe and Jeanne Fromer) (showing increase from 42 trademark applications
originating from China in 1985 to 51,312 applications in 2017), https://www.judiciary.senate.gov/imo/media/doc/
Beebe%20Testimony.pdf [hereinafter Beebe & Fromer Statement].
211 Id. at 18–20. Such fraudulent trademark applications relied on “specimens of use” that, for example, consisted of
multiple, nearly identical images of the same consumer product digitally altered with a different brand name on the tag,
or relied on a product image associated with another company. Id. at 19 (laying out indicia of fraudulent specimens of
use); see also Jacob Gershman, Flood of Trademark Applications From China Alarms U.S. Officials, WALL ST. J. (May
5, 2018), https://www.wsj.com/articles/flood-of-trademark-applications-fromchinaalarms-u-s-officials-1525521600.
212 See Beebe & Fromer Statement, supra note 210, at 32–33.
213 Gershman, supra note 211; Trade Relations: Bringing in the Big Guns, WORLD INTELL. PROP. REV. (Apr. 11, 2019),
https://www.worldipreview.com/contributed-article/trade-relations-sending-in-the-big-guns (“As part of a national
effort to drive growth and IP ownership, China’s provincial governments began paying citizens for each trademark
registered in the US, in some cases paying $790 for each US trademark application, according to reports.”).
214 See Fraudulent Trademarks: How They Undermine the Trademark System and Harm American Consumers and
Businesses: Hearing Before the S. Subcomm. on Intellectual Property of the S. Comm. on the Judiciary, 116th Cong. 8
(responses to questions for the record by Megan K. Bannigan), https://www.judiciary.senate.gov/imo/media/doc/
Bannigan%20Response%20QFRs.pdf (“I cannot say concretely why China is doing this and can only assume it is to
negatively impact the American economy and competitiveness, while bolstering the Chinese economy and
competitiveness.”); Bruce Berman, 12-Fold Increase in China’s U.S. Trademark Apps; Many Are Said to Be
Fraudulent and Improperly Filed, IP CLOSEUP (Sept. 4, 2018), https://ipcloseup.com/2018/09/04/12-fold-increase-in-
chinas-u-s-trademark-apps-many-are-said-to-be-fraudulent-and-improperly-filed/ (overviewing debate over whether
“China may be attempting to ‘disrupt’ the U.S. [trademark] system by flooding it with huge numbers of applications”).
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China and the government can make these distinctions more difficult to draw than in other
countries.215
For some types of IP violations—such as a failure to provide adequate IP protection216 or
discriminatory IP licensing regulations217—the actor at issue is necessarily a governmental entity,
as the complaint concerns the legal provisions of Chinese domestic law. In most cases, however,
the varieties of IP violations discussed above may be committed either by entities affiliated with
the Chinese government, or by private entities acting without state sponsorship. For example,
U.S. authorities have alleged that certain cyber intrusions are committed with the support of the
Chinese government, but this is not necessarily true in every case.218 With respect to IP
infringements such as piracy or counterfeiting, the infringers may be primarily nongovernmental
entities, although U.S. rights holders complain of a lack of effective enforcement by Chinese
authorities.219 In other cases, it may be unclear whether a particular IP violation is supported by
the Chinese government.
Existing Legal Remedies
The legal remedies available for IP violations by Chinese entities depend on many factors,
including the nature of the violation, the type of IP at issue, where the violation occurred, the
availability of personal jurisdiction over the accused, and whether the violation is part of a larger
pattern of IP violations.220 This section reviews some of the principal legal remedies available
under current law. First, it reviews remedies to address systemic violations, which are usually
initiated by the executive branch to address widespread IP violations by foreign actors. These
remedies generally rely on the President’s authority over foreign affairs or Congress’s statutory
delegation of its authority over trade to the executive branch. Second, this section reviews the
civil, criminal, and administrative remedies available for individual IP violations—that is,
discrete IP violations affecting a particular rights holder—such as infringement suits or import
controls. This section does not address the policy considerations relevant to pursuing these
various remedies.221
Systemic Violations: Foreign Affairs and Trade Remedies
This section examines actions that the executive branch could initiate against China’s alleged
violations of U.S. IP rights under international trade agreements, through the use of its
constitutional authority over foreign affairs, and under domestic international trade statutes.

215 SECTION 301 INVESTIGATION REPORT, supra note 8, at 25 (noting that the “complex relationship between China’s
private sector and the government” is a “particular challenge”).
216 See discussion supra in “Under-Protection.”
217 See discussion supra in “Discriminatory Restrictions on Contractual IP Licensing.”
218 See SECTION 301 INVESTIGATION REPORT, supra note 8, at 153; 2017 CHINA WTO COMPLIANCE REPORT, supra note
32, at 115.
219 See discussion supra in “Infringement and Under-Enforcement.”
220 Although this report focuses on China, these legal remedies are not restricted to addressing IP violations by Chinese
entities, but are available to address IP violations more generally.
221 For more on these policy aspects, see Ilias Akhtar et al., supra note 3.
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Although this section also examines remedies under some national security-related authorities,222
it does not address potential remedies under U.S. sanctions laws.223
TRIPS and WTO Disputes
The United States could consider challenging China’s IP practices by bringing cases against
China before a WTO dispute settlement panel. To initiate a WTO dispute, a complaining member
requests consultations with the respondent member in an effort to settle the dispute.224 If these
consultations fail, the member initiating a dispute may request the establishment of a dispute
settlement panel composed of trade experts to determine whether a country has violated WTO
rules.225 Prior to December 2019, if a WTO panel rendered an adverse decision against China, it
would be expected to bring its practices in line with its WTO obligations, generally within a
reasonable period of time, or face the possibility of paying compensation to the complaining
member or being subject to countermeasures allowed under the rules.226 Such countermeasures
could include the United States imposing higher duties on imports of selected products from
China.227
As of December 11, 2019, the WTO’s Appellate Body—the entity that considers appeals from
dispute settlement panel decisions—lost its quorum of three members necessary to decide such
appeals.228 Accordingly, if a WTO member appeals a panel report, the Dispute Settlement Body
(DSB) (i.e., the committee composed of all WTO members that oversees the dispute settlement
mechanism) can no longer adopt panel reports in line with the WTO’s Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU).229 Unless WTO members agree to

222 See, e.g., NAT’L COUNTERINTELLIGENCE & SEC. CTR., NATIONAL COUNTERINTELLIGENCE STRATEGY OF THE UNITED
STATES OF AMERICA 2020–2022, at 1, 8 (2020), https://www.dni.gov/files/NCSC/documents/features/20200205-
National_CI_Strategy_2020_2022.pdf [hereinafter COUNTERINTELLIGENCE STRATEGY REPORT] (listing as one of three
primary goals the promotion of “American prosperity by protecting our economy from foreign adversaries who seek to
steal our technology and intellectual property” and noting that “[t]he theft of our most sensitive technologies, research
and intellectual property harms U.S. economic, technological, and military advantage in the world”).
223 This section also does not examine whether the use of such authorities against China would violate U.S. obligations
under international agreements.
224 WTO Understanding on Rules and Procedures Governing the Settlement of Disputes arts. 3–6 [hereinafter DSU].
The texts of the DSU and other WTO agreements discussed in this report are available at https://www.wto.org/english/
docs_e/legal_e/final_e.htm.
225 Id.
226 DSU, supra note 224, arts. 21–22. Prior to the Appellate Body’s loss of a quorum in December 2019, WTO
members whose measures were deemed inconsistent with its WTO obligations and unjustified under one of the GATT
exceptions were expected to implement the panel or Appellate Body’s report. Id. art. 21.3. That is, the defending
member had to withdraw, modify, or replace its inconsistent measures. See id. If a disagreement arose as to whether the
defending member had, in fact, implemented the report, a WTO panel could be convened to hear the dispute over
compliance. Id. art. 21.5. The WTO Appellate Body also heard appeals of these compliance panel reports. Id. art. 17.1.
227 See id. art. 22.3. Prior to the Appellate Body’s loss of a quorum, when a defending Member failed to implement a
panel or Appellate Body report within the established compliance period, the prevailing member could request that the
defending member negotiate a compensation agreement. Id. art. 22.2. If such negotiations were not requested or if an
agreement was not reached, the prevailing member could also request authorization to impose certain trade sanctions
against the noncomplying member. Id. art. 22.2–22.3. Specifically, the WTO could authorize the prevailing member to
suspend tariff concessions or other trade obligations that it otherwise owed the noncomplying member under a WTO
agreement. Id.
228 Alan H. Price, Real WTO Reform Now Possible with Demise of Appellate Body, BLOOMBERG LAW (Dec. 20,
2019). For more on this issue, see CRS Legal Sidebar LSB10385, The WTO’s Appellate Body Loses Its Quorum: Is
This the Beginning of the End for the “Rules-Based Trading System”?, by Brandon J. Murrill.
229 DSU, supra note 224, art. 16.
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consider panel reports as final, the DSB can no longer oversee the losing member’s
implementation of a panel report or authorize the prevailing member to engage in trade retaliation
if the losing member ignores the dispute panel’s recommendations.230 Thus, even if the United
States obtained a favorable ruling against China from a dispute panel, there are doubts as to
whether the ruling would be enforceable under WTO procedures.
As an example, in March 2018, the United States initiated the WTO dispute process against China
based on its laws and implementing measures for importing and exporting technology and for
foreign JVs.231 Specifically, the United States alleged that these Chinese laws and regulations
were inconsistent with TRIPS’s national treatment principle,232 because they treated foreign IP
rights holders less favorably than Chinese IP rights holders.233 The United States also alleged that
Chinese regulations permitting a Chinese JV partner to continue using licensed technology even
after a contract’s expiration violate TRIPS article 28.1 because they deny the foreign patentee the
“exclusive” right to her invention.234 In other words, these Chinese laws and regulations allegedly
favor Chinese IP holders, while preventing U.S. IP rights holders from enforcing their valid IP
rights. On June 14, 2019, at the request of the United States, the WTO panel handling the dispute
suspended the proceedings.235 The suspension remains in effect at the request of the United States
and with China’s consent, although the panel resumed work for several brief periods between
June 14, 2019, and June 8, 2020. The most recent request for a suspension was filed in June
2020.236 Under the DSU, a panel retains its authority so long as it has not been suspended for
more than twelve months.237 The United States and China appear to interpret this rule as
permitting suspensions to extend beyond a year overall if the panel has resumed work, even
briefly, during that period.
WTO rules under the TRIPS Agreement are arguably inadequate for addressing China’s IP
violations because WTO members retain some flexibility with regard to implementation and
enforcement. In addition, there can be difficulties in collecting sufficient evidence to support a
WTO dispute. The executive branch’s decision to impose tariffs under domestic law to address
some of China’s IP practices identified in the USTR’s Section 301 Report may reflect this
concern.238

230 Some U.S. trading partners have agreed to an interim appeal system that does not—at least yet—include the United
States. See In Davos, DG Azevêdo Hears Support—and Urgency—for WTO Reform, WTO.ORG (Jan. 24, 2020),
https://www.wto.org/english/news_e/news20_e/minis_24jan20_e.htm.
231 Request for Consultations by the United States, China—Certain Measures Concerning the Protection of Intellectual
Property Rights, WTO Doc. WT/DS542/1 (Mar. 26, 2018).
232 TRIPS, supra note 41, art. 3; see supra note 127 and accompanying text.
233 Request for Consultations by the United States, China—Certain Measures Concerning the Protection of Intellectual
Property Rights, WTO Doc. WT/DS542/1 (Mar. 26, 2018), at 2.
234 Id.
235 Communication from the Panel, China—Certain Measures Concerning the Protection of Intellectual Property
Rights, WTO Doc. WT/DS542/10 (June 14, 2019).
236 Communication from the Panel, China—Certain Measures Concerning the Protection of Intellectual Property
Rights, WTO Doc. WT/DS542/14 (June 18, 2020).
237 DSU, supra note 224, art. 12.12.
238 Memorandum of March 22, 2018, Actions by the United States Related to the Section 301 Investigation of China’s
Laws, Policies, Practices, or Actions Related to Technology Transfer, Intellectual Property, and Innovation, 83 Fed.
Reg. 13,099 (Mar. 27, 2018); see also, e.g., Notice of Action and Request for Public Comment Concerning Proposed
Determination of Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to Technology
Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 28,710, 28,711 (June 20, 2018).
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Diplomacy and International Agreements239
The President possesses constitutional authority over diplomacy and foreign affairs.240 This
includes constitutional power to negotiate international agreements241 and non-legally binding
international pacts.242 The executive branch may use this authority to negotiate more extensive
protections for U.S. IP than is currently offered by TRIPS. Such protections may be contained
within a comprehensive bilateral free-trade agreement or as part of a multilateral agreement
among several countries.243 To the extent that international engagement with China may result in
international pacts that are not legally binding, the President historically has claimed the power to
conclude such pacts without congressional authorization.244 If a negotiation produces a binding
international agreement, however, Congress’s role varies depending on the final agreement’s
form (i.e., whether it is an Article II treaty that requires the Senate’s advice and consent, a
congressional-executive agreement that requires congressional approval, or a sole executive
agreement for which the President claims constitutional authority to conclude without
Congress).245
The executive branch has used this constitutional authority, in conjunction with statutory
authority under Section 301,246 to negotiate certain “structural reforms” to China’s IP practices to
protect U.S. IP rights holders as part of the Phase One Agreement.247 As explained by the USTR,
the Phase One Agreement was designed, in part, to address the issues identified during the
Section 301 investigation, and thus relied partly on statutory authority to enter into binding
agreements with a country “that commits it to eliminate or phase out the act, policy or practice in
question.”248 Issues not addressed by the Section 301 investigation (e.g., market access for
agriculture and purchase requirements) may have relied instead on the President’s authority over
foreign affairs. Unlike a number of other Section 301 agreements, the Phase One Agreement does
not include a binding obligation on the parties to remove tariffs or other countermeasures

239 Steve Mulligan, CRS Legislative Attorney, contributed to this section.
240 While recognizing that the Constitution divides the foreign affairs power between Congress and the Executive,
Zivotofsky v. Kerry, 576 U.S. 1, 16 (2015) (“In foreign affairs, as in the domestic realm, the Constitution ‘enjoins upon
its branches separateness but interdependence, autonomy but reciprocity.’” (quoting Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring))), the Supreme Court has stated that the President possesses
the “vast share” of foreign relations authority. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting
Youngstown Sheet & Tube Co., 343 U.S. at 610–11 (Frankfurter, J., concurring)).
241 See Zivotofsky, 576 U.S. at 13 (“The President has the sole power to negotiate treaties . . . .”); CONG. RSCH. SERV.,
TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, S. REP. NO. 106-97, at
96–97 (2001) (discussing negotiations of treaties and other international agreements).
242 See CRS Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan,
at 12–15 (discussing authority to negotiate and complete nonlegal pacts). The President also possesses specific
statutory authority over certain trade agreements, discussed in more detail below. See discussion infra in “Section 301
of the Trade Act of 1974.”
243 Currently, the WTO and the World Intellectual Property Organization (WIPO) represent the primary fora for global
cooperation on protecting IP. WIPO is a “self-funding agency of the United Nations, with 192 member states.” See
TRIPS, supra note 41; Inside WIPO, WORLD INTELL. PROP. ORG., https://wipo.int/about-wipo/en/ (last visited Aug. 18,
2020).
244 See Mulligan, supra note 242, at 12–15.
245 For a discussion of the forms of international agreements and the role of Congress, see id. at 2–15.
246 See discussion infra in “Section 301 of the Trade Act of 1974.”
247 Hearing on U.S.-China Trade Before the H. Comm. on Ways and Means, 116th Cong. 22 (2019) (statement of
Robert E. Lighthizer, U.S. Trade Rep.) (“The President is using his power under Section 301, which has been
delegated. And it is an executive agreement which the Constitution gives the President the right to enter into.”).
248 19 U.S.C. § 2411(c).
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imposed during the trade dispute. Moreover, the Phase One Agreement is somewhat unusual in
that it addresses a dispute outside the context of the WTO; by contrast, other recent uses of this
Section 301 negotiating authority have sought to resolve long-standing WTO disputes.249 As
discussed above, the increased tensions between the United States and China have led to more
uncertainty as to whether the Phase One Agreement will be fully implemented (or terminated) and
whether the contemplated Phase Two Agreement may ever be negotiated.
Section 301 of the Trade Act of 1974
To address China’s IP practices, the executive might also consider using authority under domestic
trade statutes. As noted, one broad authority that might be used is known as “Section 301.” The
statutory framework governing “Section 301” investigations is based in Sections 301 through 310
of the Trade Act of 1974, as amended.250 This framework is one of the principal means by which
the United States enforces U.S. rights under trade agreements and addresses “unfair” trade
barriers to U.S. exports.251
Investigations can be initiated as a result of a petition filed by an interested party with the USTR
or by the agency itself.252 If the USTR initiates an investigation under Section 301, then Section
303 requires that, on the date of initiation, the USTR must “request consultations with the foreign
country concerned” to reach a settlement within a set time frame.253 Section 303 also requires the
USTR to determine whether the Section 301 investigation “involves a trade agreement” and, if so,
must then follow the formal dispute settlement process under that agreement should consultations
with the other country fail.254 If the USTR makes an affirmative determination of “unfair” barriers
to U.S. trade, it generally must implement the action it determines to take, subject to any specific
direction of the President, no later than thirty days after the date of the affirmative
determination.255

249 See Hart, supra note 15.
250 19 U.S.C. §§ 2411–2420. This memorandum does not discuss all of the procedures the USTR must follow under
Section 301. See generally CRS Legal Sidebar LSB10108, Tricks of the Trade: Section 301 Investigation of Chinese
Intellectual Property Practices Concludes (Part I), by Brandon J. Murrill (discussing the executive branch’s use of
Section 301 against China and the procedures that the USTR follows when conducting a Section 301 investigation).
251 For a discussion of the policy considerations in Section 301 investigations and the history of their use with regard to
China specifically, see CRS Section 301 and China, supra note 13. For a discussion of the policy considerations related
to the Trump Administration’s tariff actions under Section 301, see Williams et al., supra note 13. For an overview of
Section 301 and policy considerations, see CRS In Focus IF11346, Section 301 of the Trade Act of 1974, by Andres B.
Schwarzenberg.
252 19 U.S.C. § 2412.
253 Id. § 2413.
254 Id.
255 Id. § 2415(a). Under certain circumstances, the agency may temporarily delay action. See id. Section 301 provides
that the action taken “to eliminate an act, policy, or practice shall be devised so as to affect goods or services of the
foreign country in an amount that is equivalent in value to the burden or restriction being imposed by that country on
United States commerce.” Id. § 2411(a)(3). Section 301 defines two types of executive action—mandatory or
discretionary—that can result from Section 301 investigations. Under Section 301(a)—the “mandatory action”
provision—the USTR must take action as specified by the statute, subject to certain exceptions, if he determines that
• “the rights of the United States under any trade agreement are being denied,” or
• “an act, policy, or practice of a foreign country . . . violates, or is inconsistent with, the provisions of, or
otherwise denies benefits to the United States under, any trade agreement,” or
• “an act, policy, or practice of a foreign country . . . is unjustifiable” (defined to mean conduct that “is in violation
of, or inconsistent with, the international legal rights of the United States”) “and burdens or restricts United
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The statute authorizes the USTR to, among other things,256
 suspend, withdraw, or prevent the application of certain benefits of trade
concessions in a trade agreement with the country under investigation;257
 impose duties or other import restrictions on goods or fees or restrictions on
services;258

States commerce.”
Id. § 2411(a), (d)(4)(A). The provision further states that in order to enforce U.S. rights under a trade agreement or
obtain the elimination of certain unfair practices, “[a]ctions may be taken that are within the power of the President
with respect to trade in any goods or services, or with respect to any other area of pertinent relations with the foreign
country.” Id. § 2411(a)(1)(B)(ii) (emphasis added). Thus, the mandatory action provision generally applies in the
context of a trade agreement provision, or when a foreign country’s conduct violates or is inconsistent with
international legal rights (which likely are the product of such a trade agreement).
By contrast, under Section 301(b)—the “discretionary action” provision—the USTR may take certain actions
enumerated in the statute if he determines that “an act, policy, or practice of a foreign country is unreasonable or
discriminatory and burdens or restricts United States commerce, and . . . action by the United States is appropriate.” Id.
§ 2411(b). The statute specifies that conduct “is unreasonable if the act, policy, or practice, while not necessarily in
violation of, or inconsistent with, the international legal rights of the United States, is otherwise unfair and inequitable.”
Id. § 2411(d)(3)(A). Thus, the discretionary action provision can operate outside of the context of a trade agreement or
established “international legal rights.” Conduct is discriminatory under the statute when “any act, policy, and
practice . . . denies national or most-favored-nation treatment to United States goods, services, or investment.” Id.
§ 2411(d)(5). “Most-favored-nation treatment” is a commitment on the part of trading partners to treat another
country’s goods no less favorably than the goods of other trade agreement countries.
256 Section 301(a)(1)(B) states that the USTR shall take authorized actions
subject to the specific direction, if any, of the President regarding any such action, and shall take all
other appropriate and feasible action within the power of the President that the President may direct
the USTR to take under this subsection, to enforce such rights or to obtain the elimination of such
act, policy, or practice. Actions may be taken that are within the power of the President with respect
to trade in any goods or services, or with respect to any other area of pertinent relations with the
foreign country.
Id. § 2411(a)(1)(B).
257 This report does not examine the President’s authority to withdraw from free trade agreements altogether. For more
on this issue, see CRS Report R45557, The President’s Authority to Withdraw the United States from the North
American Free Trade Agreement (NAFTA) Without Further Congressional Action, by Brandon J. Murrill.
258 There are other international trade-related statutory authorities not discussed in this section that appear to provide
the President with broad authority to regulate international commerce. For example, Section 338 of the Tariff Act of
1930 authorizes the President to, among other things, impose duties on imports from a foreign country that
(1) Imposes, directly or indirectly, upon the disposition in or transportation in transit through or
reexportation from such country of any article wholly or in part the growth or product of the United
States any unreasonable charge, exaction, regulation, or limitation which is not equally enforced
upon the like articles of every foreign country; or
(2) Discriminates in fact against the commerce of the United States, directly or indirectly, by law or
administrative regulation or practice, by or in respect to any customs, tonnage, or port duty, fee,
charge, exaction, classification, regulation, condition, restriction, or prohibition, in such manner as
to place the commerce of the United States at a disadvantage compared with the commerce of any
foreign country.
19 U.S.C. § 1338.
As another example, Section 103(a) of the 2015 Bipartisan Congressional Trade Priorities and Accountability Act (Pub.
L. No. 114-26) authorizes the President to enter into limited trade agreements with foreign countries before July 1,
2021, in order to promote U.S. trade by obtaining the reciprocal reduction or removal of tariff barriers “or other import
restrictions,” provided the President follows certain procedural requirements and adheres to certain limitations on the
exercise of this authority. Id. § 4202(a). The executive branch might also consider using authorities specifically related
to tariffs and quantitative restrictions on agricultural imports. See, e.g., id. §§ 3601 (tariff-rate quotas), 3602 (special
agricultural safeguards).
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 revoke, suspend, or limit, in accordance with trade preference laws, certain
trade preferences that provide duty-free treatment to goods, regardless of
whether it affects goods or services in an amount equivalent to the burden
imposed by that country on U.S. commerce; and
 enter into binding agreements that commit the offending country to eliminate
or phase out the act, policy, or practice in question; eliminate the burden or
restriction on U.S. commerce from such conduct; or compensate the United
States with trade benefits.259
After the statute was enacted in 1974, the United States conducted numerous Section 301
investigations to enforce its trade rights, with some of the most significant cases brought against
China in the early 1990s.260 Following the establishment in 1995 of the WTO’s dispute settlement
procedures under the DSU, however, the United States began to rely primarily on the WTO
dispute settlement process to enforce its trade rights.261 With the exception of the Trump
Administration’s unilateral tariffs imposed on Chinese imports, which a WTO panel ruled to
violate U.S. WTO commitments,262 the Section 301 investigations initiated after 1995 either
resulted in a WTO dispute settlement case; were used to enforce the outcomes of a previously
decided WTO dispute; or were not further pursued by the USTR.263
The Trump Administration has already imposed Section 301 tariffs on billions of dollars in
Chinese imports to address China’s alleged IP violations.264 However, Section 301 might provide
a variety of additional options for the United States to act directly or indirectly against China if
the USTR determines that China’s practices meet the statutory criteria for taking such action.
Section 301 provides that the USTR may take action against “any goods or economic sector
(A) on a nondiscriminatory basis or solely against the foreign country [in violation], and
(B) without regard to whether or not such goods or economic sector were involved in the act,
policy, or practice that is the subject of such action.”265 Accordingly, Section 301 might seemingly
be used to restrict imports of China products or services into the United States or to restrict
imports of goods and services of other countries or companies to pressure them not to do business
with China.266
An additional provision, known as “Special 301,” requires the USTR to issue an annual report
identifying foreign countries that are “priority foreign countries” because they deny effective
protection of U.S. IP rights267 or they deny fair and equitable market access to U.S. persons who

259 Id. § 2411(c).
260 See CRS Section 301 and China, supra note 13.
261 Bruce Hirsch, Taking Matters into Your Own Hands–Section 301 of the Trade Act of 1974, HINRICH FOUND. (Aug.
3, 2017), https://tradevistas.org/taking-matters-hands-section-301-trade-act-1974/.
262 See id.; Panel Report, United States—Tariff Measures on Certain Goods from China, WTO Doc. WT/DS543/R
(Sept. 15, 2020).
263 Williams et al., supra note 13, at 9.
264 For more on these tariffs, see CRS In Focus IF11346, Section 301 of the Trade Act of 1974, by Andres B.
Schwarzenberg.
265 19 U.S.C. § 2411(c).
266 Section 301 includes within its definition of “services” the “transfers of information,” raising the possibility that
USTR might restrict data flows to Chinese companies that enable them to provide goods or services. See id.
§ 2411(d)(1).
267 Regardless of whether it is in compliance with TRIPS, a “foreign country denies adequate and effective protection
of intellectual property rights if the foreign country denies adequate and effective means under the laws of the foreign
country for persons who are not citizens or nationals of such foreign country to secure, exercise, and enforce rights
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rely upon IP protection.268 If these countries are not entering into good faith negotiations or
otherwise making significant progress in negotiations to protect IP effectively, then the USTR
must develop an action plan with respect to a country that has remained on the list for at least one
year.269 The President may take “appropriate action” with respect to a foreign country that fails to
meet action plan benchmarks.270
Export Controls271
The U.S. government may also regulate the transfer of U.S.-based IP to Chinese entities through
the use of the export control regime.272 The Export Controls Act of 2018 (ECA)273 provides the
President with certain powers to control the export of, among other things, certain U.S. dual-use
goods and technology.274 Specifically, it requires the executive branch to develop a list of
controlled items and a list of foreign entities and end-users that cannot receive certain U.S.
exports without a license because they are deemed “threat[s] to the national security and foreign
policy of the United States.”275 The U.S. Department of Commerce’s Bureau of Industry and
Security (BIS) maintains a list, known as the “Entity List,” of individuals and entities that are
subject to license requirements for the export of specific items.276 The concept of “export” is
broad and includes the transfer of technology or data to a foreign national within a U.S.
territory.277 Thus, the U.S. government could seek to prevent theft of U.S. IP rights by regulating
transfers of technology or data embodying U.S. IP rights to Chinese individuals or entities, even
if such transfers occur within the boundaries of the United States.
The U.S. government could also use export controls to pressure China to cease violating U.S. IP
rights by denying critical components to Chinese companies. The United States has added many
Chinese companies and their non-U.S. affiliates to the Entity List since 2019. For example, in
final rules issued in May and August 2019, BIS added Huawei Technologies Co., Ltd. (Huawei)
and 114 non-U.S. affiliates of Huawei to the Entity List.278 Because some Chinese companies

relating to patents, process patents, registered trademarks, copyrights, trade secrets, and mask works.” Id. § 2242(d)(2).
268 Regardless of whether it is in compliance with TRIPS, “[a] foreign country denies fair and equitable market access
if the foreign country effectively denies access to a market for a product protected by a copyright or related right,
patent, trademark, mask work, trade secret, or plant breeder’s right, through the use of laws, procedures, practices, or
regulations” that violate international law or agreements to which the United States and the foreign country are party,
or “constitute discriminatory nontariff trade barriers.” Id. § 2242(d)(3). The Special 301 Report also identifies countries
on additional administratively created categories, such as the “Priority Watch List” countries—a category that includes
China. See 2019 SPECIAL 301 REPORT, supra note 32, at 6.
269 19 U.S.C. § 2242(g).
270 Id.
271 Steve Mulligan, CRS Legislative Attorney, contributed to this section of the report.
272 See David S. Bloch, Intellectual Property Implications of Export Control Laws, BLOOMBERG LAW (2011),
https://www.winston.com/images/content/7/6/767.pdf (“Through the export control regime, the Government regulates
what U.S.-based IP can be conveyed to foreign parties, and how.”).
273 50 U.S.C. §§ 4801–4826.
274 Id. § 4812. For detailed background on the Export Controls Act and its authority, see CRS Report R41916, The U.S.
Export Control System and the Export Control Reform Initiative, by Ian F. Fergusson and Paul K. Kerr.
275 50 U.S.C. § 4813(a)(1)–(2).
276 See 15 C.F.R. app. supp. no. 4. to pt. 744.
277 15 C.F.R. § 734.13.
278 Addition of Entities to the Entity List, 84 Fed. Reg. 22,961 (May 21, 2019) (codified at 15 U.S.C. pt. 744); Addition
of Entities to the Entity List and Revision of Entities on the Entity List, 84 Fed. Reg. 43,493 (Aug. 21, 2019) (codified
at 15 U.S.C. pt. 744). However, BIS has maintained certain limited exemptions for some exports to these entities. See,
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(e.g., telecommunications companies) depend on certain U.S. products, such as microchips, for
their supply chain, denial of exports of U.S. products can severely affect their business.279
Section 232 of the Trade Expansion Act of 1962
Section 232 of the Trade Expansion Act of 1962 authorizes the President to “adjust the imports”
of “articles” and their derivatives to address threats to national security.280 The statute’s use of the
term “articles” suggests that it is aimed at addressing imports of products (e.g., machinery or
DVDs containing counterfeit software or patent-infringing hardware).281 Although Section 232
addresses imports of articles that threaten national security, the U.S. government has noted the
close relationship between foreign theft of U.S. IP rights and national security.282 For example,
the 2020 National Counterintelligence Strategy notes that “[t]he theft of our most sensitive
technologies, research and intellectual property harms U.S. economic, technological, and military
advantage in the world.”283 Because Section 232 defines the concept of “national security”
broadly to include economic effects, the executive could likely use this authority to restrict or
prohibit imports of IP-infringing goods from China or to pressure other countries to cease doing
business with China.284
The President’s authority under Section 232 is triggered if the Department of Commerce conducts
an investigation and concludes that the articles are “being imported into the United States in such
quantities or under such circumstances as to threaten to impair the national security.”285 The
“adjustment” of imports might take the form of tariffs, quotas, tariff-rate quotas, import licenses,
embargos, or other restrictions for a duration that the President determines is appropriate286—or
the negotiation of trade agreements that limit or restrict the import into, or export from, the
United States of the article at issue.287

e.g., Press Release, U.S. Dep’t of Commerce, U.S. Department of Commerce Extends Huawei Temporary General
License (Nov. 18, 2019), https://www.commerce.gov/news/press-releases/2019/11/us-department-commerce-extends-
huawei-temporary-general-license.
279 In November 2018, Huawei released a list of core suppliers, and thirty-three of ninety-two suppliers were U.S.
companies. Yuan Yang & Lucy Hornby, China Raises Alarm over Its Dependency on Foreign Chips, FIN. TIMES (July
18, 2018), https://www.ft.com/content/410306d8-8ae0-11e8-bf9e-8771d5404543 (“China relies on imported
semiconductors to build the hardware—including phones, telecoms gear and computers—that account for almost one-
third of its exports . . . .”).
280 19 U.S.C. § 1862. For a comprehensive overview of Section 232, see CRS Report R45249, Section 232
Investigations: Overview and Issues for Congress, coordinated by Rachel F. Fefer.
281 Article, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/article (defining “article” as “a member
of a class of things, especially: an item of goods”) (last visited Aug. 18, 2020).
282 See, e.g., COUNTERINTELLIGENCE STRATEGY REPORT, supra note 222, at 1, 8 (listing as one of three primary goals,
the promotion of “American prosperity by protecting our economy from foreign adversaries who seek to steal our
technology and intellectual property” and noting that “[t]he theft of our most sensitive technologies, research and
intellectual property harms U.S. economic, technological, and military advantage in the world”).
283 Id. at 8.
284 19 U.S.C. § 1862(d).
285 Id. § 1862(c)(1).
286 Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 561 (1976).
287 19 U.S.C. § 1862(c)(3)(A).
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The statute provides that the Department of Commerce and the President shall consider a wide
variety of factors when determining whether imports threaten national security and how to adjust
them if necessary.288 It characterizes national security concerns broadly, stating the following:
In the administration of this section, the Secretary [of Commerce] and the President shall
further recognize the close relation of the economic welfare of the Nation to our national
security, and shall take into consideration the impact of foreign competition on the
economic welfare of individual domestic industries; and any substantial unemployment,
decrease in revenues of government, loss of skills or investment, or other serious effects
resulting from the displacement of any domestic products by excessive imports shall be
considered, without excluding other factors, in determining whether such weakening of our
internal economy may impair the national security.289
Prior to the Trump Administration’s use of Section 232, there was relatively little case law
interpreting the scope of the President’s authority under Section 232, although a 1976 Supreme
Court case upheld Section 232 as a constitutional delegation of authority to the President.290 The
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has relied upon and reaffirmed this
precedent in recent litigation291 challenging President Trump’s 2018 proclamations imposing
tariffs on certain steel and aluminum.292
Further case law from the U.S. Court of International Trade (CIT) suggests some limits to the
scope of the President’s authority under Section 232. For instance, in Transpacific Steel LLC v.
United States, a U.S. company that imports steel products from various countries, including
Turkey, sought a refund of the allegedly excess Section 232 duties it paid on imports of Turkish
steel.293 The CIT held that the President’s power to impose tariffs under Section 232(b), while
broad, is not unlimited.294 Specifically, the court decided that the President must closely adhere to
the statute’s procedural requirements when exercising such authority.295 The court also

288 These factors include
domestic production needed for projected national defense requirements, the capacity of domestic
industries to meet such requirements, existing and anticipated availabilities of the human resources,
products, raw materials, and other supplies and services essential to the national defense, the
requirements of growth of such industries and such supplies and services including the investment,
exploration, and development necessary to assure such growth, and the importation of goods in
terms of their quantities, availabilities, character, and use as those affect such industries and the
capacity of the United States to meet national security requirements.
Id. § 1862(d).
289 Id.
290 Algonquin SNG, 426 U.S. at 561.
291 Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x 982 (Fed. Cir. 2020), cert. denied, No. 19-1177, 2020
WL 3405872 (mem.) (U.S. June 22, 2020).
292 Proclamation 9704 of March 8, 2018: Adjusting Imports of Aluminum Into the United States, 83 Fed. Reg. 11,619
(Mar. 15, 2018); Proclamation 9705 of March 8, 2018: Adjusting Imports of Steel Into the United States, 83 Fed. Reg.
11,625 (Mar. 15, 2018). The Department of Commerce has also developed a process whereby individuals or
organizations can file requests for exclusions from the tariffs. The exclusion process might also be used as a form of
leverage over companies or countries. For more on the Section 232 process, the historical use of this authority, and the
exclusion process, see CRS Report R45249, Section 232 Investigations: Overview and Issues for Congress, coordinated
by Rachel F. Fefer.
293 Transpacific Steel LLC v. United States, No. 19-00009, 2020 WL 3979838, at *1 (Ct. Int’l Trade July 14, 2020); see
also Transpacific Steel LLC v. United States, 415 F. Supp. 3d 1267 (Ct. of Int’l Trade 2019) (prior decision denying
the United States’ motion to dismiss the complaint because the court found the constitutional and statutory allegations
were plausible).
294 Transpacific Steel, 2020 WL 3979838, at *1.
295 Id. at *3–4.
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determined that the executive violated constitutional guarantees of equal protection protected by
the Fifth Amendment’s Due Process Clause when imposing, without a rational basis, the
additional steel tariffs only on imports from Turkey.296 This decision indicates that courts may
scrutinize whether the executive branch has followed the proper procedures, including meeting
statutory deadlines, when exercising Section 232 authority.
Provided proper statutory procedures are followed and the imposition of tariffs comports with
constitutional requirements, Section 232 might be used to restrict additional imports of Chinese
products, among others, that infringe U.S. IP rights and thereby threaten national security (e.g.,
products with IP-infringing hardware that might be used to carry out cyberattacks in the United
States). A finding under Section 232 that certain imports threaten national security does not itself
necessarily implicate a specific country, such as China, as the responsible actor; rather, the focus
of Section 232 investigations is whether domestic vulnerabilities indicate that the volume or type
of imports pose risks to national security.
Section 201 of the Trade Act of 1974
Sections 201 through 204 of the Trade Act of 1974 (Section 201) authorize the President to
impose temporary tariffs, import restrictions, and other similar measures (known as “safeguards”)
following an investigation by the independent U.S. International Trade Commission (ITC) if it
reaches an affirmative determination of injury or the threat thereof to a domestic industry.297 The
President must impose such measures to protect a domestic industry from significant increases in
imports of products comparable to those produced by the domestic industry.298 For these
safeguard measures, the President decides on the amount and, to an extent, the form of relief; no
finding of an unfair trade practice is required.299
Using this authority, the executive could consider imposing safeguard duties, provided the
statutory procedures and prerequisites for action are satisfied (i.e., there is a surge of IP-infringing
Chinese products, such as counterfeit software or patent-infringing hardware, that injure or
threaten to injure a particular U.S. industry). In general, a decision to impose safeguard duties
would not necessarily indicate that China itself is involved in creating the surge or aware of the
IP-infringing nature of the products for several reasons: (1) the investigations are global in nature,
and (2) import surges can be caused by factors other than state-sponsored practices that affect
trade patterns. Nonetheless, if there was a surge of IP-infringing imports into the United States, an
investigation may encompass products whose IP-infringing elements are known to the Chinese
government.

296 Id. at *6–8.
297 19 U.S.C. §§ 2251–2254. For background and policy considerations, see CRS In Focus IF10786, Safeguards:
Section 201 of the Trade Act of 1974, by Vivian C. Jones.
298 19 U.S.C. §§ 2251–2254. Generally, measures may be imposed on products from all countries (except in certain
cases in which an international agreement provides otherwise) or products from those countries responsible for a surge
in imports. Id. The President may impose provisional relief in certain circumstances with respect to certain products,
including perishable agricultural products. See generally id. § 2252(d). Under Section 406 of the Trade Act of 1974,
which bears some similarities to Section 201, the ITC is responsible for investigating, “with respect to imports of an
article which is the product of a Communist country, whether market disruption exists with respect to an article
produced by a domestic industry” and the President can act to provide relief. Id. § 2436.
299 Id. § 2253.
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The International Emergency Economic Powers Act300
The International Emergency Economic Powers Act (IEEPA)301 grants the President power to
regulate a broad range of economic transactions when the President declares that a national
emergency exists pursuant to the provisions of the National Emergencies Act.302 The President
might rely on IEEPA to block exports to, or imports from, entities believed to engage in IP
violations if he declared that IP theft created a national emergency (e.g., because of its threat to
U.S. economic and national security interests).303 Upon a national emergency declaration, the
President may (subject to certain exceptions described below) investigate, regulate, or prohibit
foreign exchange transactions, transfers of credit involving foreign nationals or foreign countries,
and the importation or exportation of currency and securities involving persons or property
subject to U.S. jurisdiction.304 IEEPA also allows the President to take certain specified action
relating to property in which a foreign country or person has an interest, including blocking
property or specific interests in property; prohibiting U.S. persons from entering into transactions
involving frozen assets or blocked property; and regulating transactions involving frozen assets
and blocked property.305
Nonetheless, IEEPA is not boundless. The President cannot use IEEPA to regulate transactions
involving certain communications that do not involve a transfer of anything of value;
informational materials; or transactions incident to travel.306 IEEPA also is limited jurisdictionally
to transactions involving U.S. persons or property subject to the jurisdiction of the United
States.307 It does not permit the President to “confiscate” (i.e., take title to) property unless that
property is owned by a person, nation, or entity that has planned, authorized, aided, or engaged in
hostilities or attacks against the United States.308 And while IEEPA permits economic sanctions, it
does not require the President to impose or maintain them, nor does it place any congressional
review process on the executive’s decision to lift IEEPA-based sanctions.309
The President used this authority on August 6, 2020, to issue executive orders to prohibit certain
transactions involving the mobile applications TikTok and WeChat. These executive orders build
on a prior executive order addressing vulnerabilities in information and communications
technology and services. In May 2019, the President issued an executive order declaring a
national emergency due to “vulnerabilities in information and communications technology and
services, which store and communicate vast amounts of sensitive information,” including
personal information “to commit malicious cyber-enabled actions, including economic and
industrial espionage against the United States.”310 The President also determined that
“unrestricted acquisition or use” of such technology and services that was “designed, developed,
manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or

300 Steve Mulligan, CRS Legislative Attorney, contributed to this section of the report.
301 See 50 U.S.C. § 1702. For additional analysis of IEEPA, see CRS Report R45618, The International Emergency
Economic Powers Act: Origins, Evolution, and Use, coordinated by Christopher A. Casey.
302 Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601–1651).
303 50 U.S.C. § 1702(a)(1)(B).
304 Id. § 1702(a)(1)(A).
305 Id. § 1702(a)(1)(B).
306 See id. § 1702(b).
307 See id. § 1702(a)(1).
308 See id. § 1702(c).
309 See id. § 1701(a)(1) (providing that the President “may” prescribe sanctions in response to a national emergency).
310 Exec. Order No. 13,873, 84 Fed. Reg. 22,689 (May 15, 2019).
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direction of foreign adversaries” could allow such adversaries to “create and exploit
vulnerabilities,” thereby also qualifying as “an unusual and extraordinary threat to the national
security, foreign policy, and economy of the United States” under IEEPA.311 “Foreign adversary”
is defined as “any foreign government or foreign non-government person engaged in a long-term
pattern or serious instances of conduct significantly adverse to the national security of the United
States or security and safety of United States persons.”312
Based on these previous determinations, the President’s August 6, 2020, executive orders found
that “additional steps must be taken to deal with the national emergency” due to the alleged
threats posed by TikTok and WeChat.313 In particular, the President found that China “continues
to threaten the national security, foreign policy, and economy of the United States” and that
TikTok and WeChat present risks based on how much information they collect from users.314 This
information “threatens to allow the Chinese Communist Party access to Americans’ personal and
proprietary information,” which could allow China to track federal employees, build files of
personal information for blackmail, and carry out “corporate espionage.”315 To implement the
orders, the Secretary of Commerce must develop a list of prohibited transactions between
individuals subject to the jurisdiction of the United States and ByteDance Ltd. and Tencent
Holdings (the parent companies of TikTok and WeChat, respectively) and their subsidiaries.316
The Secretary must identify these prohibited types of transactions within forty-five days after
August 6, 2020.317 As of the time of writing, these transactions have not been identified, although
experts speculate that these could include removing the apps from online stores run by U.S.
companies or prohibiting financial institutions from supporting transactions conducted on the
apps or via their parent companies.318
As these executive orders suggest, at least part of the concern about TikTok and WeChat involves
economic espionage, potentially including IP. China appears to view these orders as related to the
broader U.S.-China trade disputes and negotiations, even reportedly seeking to discuss them
during the currently postponed review of the Phase One Agreement.319 In addition to these
executive orders invoking IEEPA, on August 14, 2020, President Trump issued an executive order
ordering ByteDance to divest from Musical.ly, a company that ByteDance acquired in 2017,
within ninety days, finding that the acquisition threatened national security insofar as Musical.ly’s
acts occurred in interstate commerce in the United States.320 This order relied on statutory
authority that the President may use to prohibit or limit foreign investment in the United States

311 Id.
312 Id.
313 Exec. Order No. 13,942, 85 Fed. Reg. 48,637, 48,637 (Aug. 6, 2020); Exec. Order No. 13,943, 85 Fed. Reg. 48,641,
48,641 (Aug. 6, 2020).
314 The executive orders appear to find that China qualifies as a “foreign adversary” under the May 2019 executive
order, although this is not made explicit.
315 Exec. Order No. 13,942, 85 Fed. Reg. at 48,637; Exec. Order No. 13,943, 85 Fed. Reg. at 48,641.
316 Exec. Order No. 13,942, 85 Fed. Reg. at 48,638; Exec. Order No. 13,943, 85 Fed. Reg. at 48,641–42.
317 Exec. Order No. 13,942, 85 Fed. Reg. at 48,638; Exec. Order No. 13,943, 85 Fed. Reg. at 48,642.
318 Alex Lawson, Confusion Prevails over Extent of Trump’s TikTok ‘Ban,’ LAW360 (Aug. 10, 2020),
https://www.law360.com/articles/1299421; Martin Chorzempa, Trump’s Ban on WeChat and TikTok Lacks Clarity and
Will Not Solve Our Data Security Problems, PETERSON INST. FOR INT’L ECON. (Aug. 7, 2020), https://www.piie.com/
blogs/realtime-economic-issues-watch/trumps-ban-wechat-and-tiktok-lacks-clarity-and-will-not-solve.
319 China to Bring up WeChat, TikTok in Next U.S. Trade Talks, BLOOMBERG (Aug. 12, 2020),
https://www.bloomberg.com/news/articles/2020-08-12/china-to-bring-up-wechat-tiktok-in-upcoming-u-s-trade-talks.
320 Exec. Order of Aug. 14, 2020, 85 Fed. Reg. 51,297 (Aug. 19, 2020).
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that threatens national security,321 and determined the order was necessary because other laws,
including IEEPA, could not adequately address the national security risks.322 This final order does
not address WeChat and, insofar as U.S. entities may continue transactions with TikTok until the
Secretary of Commerce identifies which transactions are prohibited, the President’s August 6,
2020, executive orders remain in effect.323 Both TikTok and WeChat have filed lawsuits against
the Administration, seeking to enjoin the effects of the executive orders on constitutional
grounds.324
Individual Violations: Civil, Criminal, and Administrative
Remedies
The preceding section focused on legal remedies initiated by the President based on executive
authority over foreign affairs or delegations of congressional power over trade to the executive
branch, primarily to address systemic IP violations by foreign actors. By contrast, this section
focuses on legal remedies available to IP rights holders under U.S. law to address individual IP
violations, including civil, criminal, and administrative processes.
Remedial Issues: Jurisdiction and Territoriality
A threshold question in all litigation, including litigation aimed at remediating IP theft, is whether
a court has the power to adjudicate the underlying allegations. In particular, the court must have
power over both the conduct and parties involved. In a case involving alleged IP theft, each of
these requirements can present challenges for a U.S. IP owner. For example, it may be difficult
for an owner of U.S. IP to pursue a domestic remedy for IP theft when the offending conduct is
performed by a foreign entity or occurs abroad (although it may be possible to pursue remedies in
the foreign jurisdiction itself). Two such challenges faced by IP owners that limit the opportunity
for U.S.-based remediation of IP theft—territoriality and personal jurisdiction—are described
below.325
Activity Outside the United States and the Principle of Territoriality
Congress has the power “to enforce its laws beyond the territorial boundaries of the United
States.”326 Nevertheless, “[i]t is a longstanding principle of American law ‘that legislation of
Congress, unless a contrary intent appears, is meant to apply only within the territorial

321 50 U.S.C. § 4565.
322 Exec. Order of Aug. 14, 2020, 85 Fed. Reg. at 51,297.
323 Some commentators have suggested that perhaps the most immediate effect of President Trump’s August 14, 2020,
executive order may be to increase pressure on ByteDance to find a U.S.-based (or non-Chinese) buyer. See, e.g., Evan
Semones, Trump Hits TikTok’s Owner Again by Ordering Sale of U.S. Operations, POLITICO (Aug. 14, 2020),
https://www.politico.com/news/2020/08/14/trump-tiktok-us-operations-sale-395720.
324 Ryan v. Trump et al., Case No. 20-cv-05948 (N.D. Cal.); TikTok Inc. et al. v. U.S. Dep’t of Commerce et al., Case
No. 20-cv-07672 (C.D. Cal.); In Re: U.S. WeChat Users Alliance et al., Case No. 20-cv-05910 (N.D. Cal.).
325 In addition, foreign states, such as China, may be entitled to sovereign immunity from civil suits, subject to certain
exceptions. 28 U.S.C. §§ 1604–1607; Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488–89 (1983). For
purposes of sovereign immunity, a “foreign state” includes “a political subdivision of a foreign state or an agency or
instrumentality of a foreign state.” 28 U.S.C. § 1603(a)–(b). Suits against officials of a foreign state are not barred by
sovereign immunity under statute, but may be barred under common law or if the foreign state is the real party in
interest. Samantar v. Yousuf, 560 U.S. 305, 324–25 (2010).
326 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (“Both parties concede, as they must, that Congress has
the authority to enforce its laws beyond the territorial boundaries of the United States.”).
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jurisdiction of the United States.’”327 According to the Supreme Court, this principle “serves to
protect against unintended clashes between our laws and those of other nations which could result
in international discord.”328 Consistent with this principle, U.S. IP laws generally reach only
conduct that occurs within the United States. For example, “the Copyright Act is considered to
have no extraterritorial reach.”329 Similarly, “purely extraterritorial conduct cannot constitute
direct infringement of a U.S. patent.”330 Thus, if the underlying acts of infringement occurred
purely outside of the United States, it may be difficult to remedy those acts in a U.S. court.
There are exceptions to the generally territorial reach of U.S. IP law, however. For example, a
trademark owner may sue for extraterritorial infringement where (1) the violations “create some
effect on American foreign commerce”; (2) the effect is “sufficiently great to present a cognizable
injury to the plaintiffs”; and (3) the link to American foreign commerce is “sufficiently strong in
relation to those of other nations to justify an assertion of foreign authority.”331 Where copyright
infringement occurs domestically and enables foreign infringement, the copyright owner may be
able to recover damages and the infringer’s extraterritorial profits.332
Similarly, various types of indirect patent infringement involve extraterritorial acts. For example,
“where a foreign party, with the requisite knowledge and intent, employs extraterritorial means to
actively induce acts of direct [patent] infringement that occur within the United States, such
conduct is not categorically exempt from redress” as an act of indirect patent infringement.333
Moreover, a person may infringe a patent by, without authority (1) supplying or causing to be
supplied in or from the United States “all or a substantial portion” of the uncombined components
of a patented invention “in such a manner as to actively induce the combination of such
components outside of the United States in a manner that would infringe the patent if such
combination occurred within the United States”;334 (2) supplying in or from the United States any
component of a patented invention “especially made or especially adapted for use in the invention
and not a staple article or commodity of commerce suitable for substantial noninfringing use,”
with knowledge that the component “is so made or adapted,” and intending that the component
will be combined outside of the United States in a manner that would infringe if it occurred

327 Id. (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)).
328 Id.
329 Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 306 (4th Cir. 2012); see also, e.g.,
Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 387 (9th Cir. 1995) (“[F]ederal copyright law
does not apply to extraterritorial acts of infringement.”); accord Geophysical Serv., Inc. v. TG S-NOPEC Geophysical
Co., 850 F.3d 785, 799–800 (5th Cir. 2017) (“Where a copyright plaintiff claims contributory infringement predicated
on direct infringement that occurred entirely extraterritorially, the plaintiff has stated no claim.”).
330 Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1302 (Fed. Cir. 2012) (citing 35 U.S.C. § 271(a)); see also 35 U.S.C.
§ 271(a) (“[W]hoever without authority makes, uses, offers to sell, or sells any patented invention, within the United
States, or imports into the United States any patented invention during the term of the patent therefore, infringes the
patent.” (emphasis added)).
331 Trader Joe’s Co. v. Hallatt, 835 F.3d 960, 969 (9th Cir. 2016) (quoting Love v. Associated Newspapers, Ltd., 611
F.3d 601, 613 (9th Cir. 2010)). Trademark owners may establish an impact on U.S. commerce by alleging, for example,
“that infringing goods, though sold initially in a foreign country, flowed into American domestic markets.” Id.
332 See, e.g., L.A. News Serv. v. Reuters Television Int’l (USA) Ltd., 340 F.3d 926, 927–32 (9th Cir. 2003).
333 Merial, 681 F.3d at 1302–03. Indirect infringement is described in more detail below. See discussion infra in
“Patent, Copyright, or Trademark Infringement.”
334 35 U.S.C. § 271(f)(1).
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within the United States;335 or (3) importing, offering to sell, selling, or using a product within the
United States that is made by a process patented in the United States.336
Personal Jurisdiction
To adjudicate a dispute, a court must also have power over the particular parties involved, a
requirement referred to as “personal jurisdiction.”337 Under current U.S. law, the primary focus
when determining whether a court has personal jurisdiction over a party is the party’s relationship
to the forum where the lawsuit is taking place.338 Because the plaintiff consents to jurisdiction in a
forum by filing a lawsuit there,339 the analysis most often centers on whether a particular court
has personal jurisdiction over the defendant. A court has personal jurisdiction over a defendant if
(1) the defendant has sufficient “minimum contacts” with the forum where the court is located;340
and (2) the exercise of jurisdiction over the defendant would “comport with ‘fair play and
substantial justice.’”341 If the cause of action is under state law, then the defendant’s minimum
contacts must be with the forum state;342 if the cause of action is under federal law and there is no
state where the defendant is subject to personal jurisdiction, then the contacts may be with the
United States as a whole.343
There are two types of personal jurisdiction: general jurisdiction and specific jurisdiction.344
Under general jurisdiction, a defendant’s contacts with a forum are so pervasive that the
defendant is essentially at home there.345 For an individual, it is the forum where they live; for a
corporation, it is any place where “the corporation is fairly regarded as at home.”346 “A court with
general jurisdiction may hear any claim against that defendant, even if all the incidents
underlying the claim occurred in a different” forum.347
Specific jurisdiction, however, relies on the conduct that underlies the lawsuit.348 For a court to
exercise specific jurisdiction, the lawsuit must arise from the defendant’s contacts with the
forum.349 Although it is necessary that the defendant’s “suit-related conduct . . . create a

335 Id. § 271(f)(2).
336 Id. § 271(g).
337 See, e.g., Robert M. Bloom & Janine A. Hanrahan, Back to the Future: The Revival of Pennoyer In Personal
Jurisdiction Doctrine and the Demise of International Shoe, 56 SAN DIEGO L. REV. 581, 582 (2019).
338 Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1779 (2017).
339 United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35–36 (1999) (“Because a plaintiff ordinarily consents to a
court’s jurisdiction by filing suit, disputes over personal jurisdiction typically feature the forum court’s relationship to
one or more defendants.”); see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811–12 (1985) (“Any plaintiff may
consent to jurisdiction.”).
340 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
341 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (quoting Int’l Shoe, 326 U.S. at 320).
342 See, e.g., Int’l Shoe, 326 U.S. at 316.
343 See, e.g., Argentina v. Weltover, Inc., 504 U.S. 607, 619–20 (1992); Plixer Int’l, Inc. v. Scrutinizer GmbH, 905 F.3d
1, 6–7 (1st Cir. 2018); Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 563 F.3d 1285, 1293–94
(Fed. Cir. 2009); A. Benjamin Spencer, The Territorial Reach of the Federal Courts, 71 FLA. L. REV. 979, 994–97
(2019) (collecting cases); see also FED. R. CIV. P. 4(k)(2).
344 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1779–80 (2017).
345 Id. at 1780.
346 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011).
347 Bristol-Myers Squibb, 137 S. Ct. at 1780 (emphasis in original).
348 Id.
349 Id.
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substantial connection with the forum,” a connection alone is insufficient.350 The connection
“must arise out of contacts that the ‘defendant himself’ creates with the forum,” rather than
contacts that the plaintiff has with the forum.351 Moreover, the contacts must be with the forum
itself, rather than “persons who reside” in that forum.352 That the plaintiffs suffered an injury as a
result of the defendant’s conduct while in the forum is insufficient. “The proper question is not
where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct
connects him to the forum in a meaningful way.”353 In other words, extraterritorial acts may not
necessarily give rise to specific jurisdiction in the United States, even if those actions injure an IP
owner in the United States.
The case of Parker v. Winwood is illustrative.354 There, the plaintiffs sued for copyright
infringement in the U.S. District Court for the Middle District of Tennessee, alleging that the
defendants had stolen the bass line from one of the plaintiffs’ songs by using it in a song that the
defendants released throughout the United States and United Kingdom.355 One of the defendants
moved to dismiss the suit on the basis of lack of personal jurisdiction, arguing that he was a
British citizen who “had never lived or worked in the United States; that he had never been to
Tennessee; and that he had never done business, had a mailing address, or had a bank account in
Tennessee, either.”356 The plaintiffs responded that the court nevertheless had personal
jurisdiction because that defendant had “purposely infringed [the plaintiffs’] copyright and
therefore willfully harmed Tennessee residents,” and that the defendant had contracted with a
record company “to distribute his infringing song, which made its way to Tennessee.”357
The district court granted the motion to dismiss as to that defendant, holding that there was no
personal jurisdiction over him in Tennessee, and the U.S. Court of Appeals for the Sixth Circuit
affirmed.358 On the plaintiffs’ first argument (i.e., that the defendant had willfully harmed
Tennessee residents), the court reasoned that the mere fact that the plaintiffs were harmed in
Tennessee was insufficient, as the alleged infringement occurred in England; thus, the
infringement did not connect the defendant to Tennessee, only to Tennessee residents.359 On the
second argument (i.e., that the song was distributed throughout the United States, including in
Tennessee), the court concluded that nationwide distribution was insufficient where there was no
evidence that the defendant had “specifically directed” the allegedly infringing song’s distribution
into Tennessee.360 Accordingly, the court determined that the district court did not have personal
jurisdiction over that defendant.361

350 Walden v. Fiore, 571 U.S. 277, 284 (2014).
351 Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
352 Id. at 285.
353 Id. at 290.
354 938 F.3d 833 (6th Cir. 2019).
355 Id. at 835–36.
356 Id. at 836.
357 Id.
358 Id. at 835.
359 Id. at 839–40.
360 Id. at 841.
361 Id. Another court has similarly held that distribution of an e-newsletter to at least seventy companies throughout the
United States did not allow an exercise of personal jurisdiction over a defendant accused of copyright infringement.
Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1071–72 (9th Cir. 2017).
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Consistent with the principle that the conduct must be specifically directed at a forum, even
selling an infringing product within a state (or within the United States) may not suffice to give
rise to personal jurisdiction. The Supreme Court has not clearly articulated the circumstances
under which introducing products into the “stream of commerce” gives rise to personal
jurisdiction; it has at least twice addressed that question, but with no majority opinion.362
In the most recent plurality opinion, Justice Kennedy opined that “[t]he principal inquiry” in
stream-of-commerce cases should be “whether the defendant’s activities manifest an intention to
submit to the power of a sovereign.”363 Justice Kennedy’s opinion rejected the notion that
“considerations of fairness and foreseeability” should play any role in the analysis, as those
considerations were “inconsistent with the premises of lawful judicial power.”364 In Justice
Kennedy’s view, “it is the defendant’s actions, not his expectations, that empower a State’s courts
to subject him to judgment.”365 Justice Breyer took a broader view, opining that if a defendant
“purposefully” benefited from conducting activity in the forum, or sold products “with the
expectation that they will be purchased” in the forum, that would suffice to confer personal
jurisdiction—but that neither requirement was met in that particular case.366 Thus, the Supreme
Court held that New Jersey did not have jurisdiction over a British manufacturer of scrap-metal
machines where the manufacturer sold its machines to a distributor who then sold the machines in
New Jersey; the manufacturer targeted the United States, but not specifically New Jersey, for
sales.367
Civil Actions
If the court has jurisdiction over an entity, one of the primary methods of IP enforcement is for
the IP owner to bring a civil action in a U.S. district court (or a state court for certain trademark or
trade secret claims).
Patent, Copyright, or Trademark Infringement
Actions involving patents, copyrights, or trademarks generally involve allegations that an entity
has infringed the IP at issue. Because the actions are generally similar, although different in some
particulars, actions alleging infringement of these three types of IP will be addressed together.
The evidence required to prove infringement depends on the type of IP that a rights holder alleges
has been infringed.
Direct infringement occurs when the defendant personally takes the actions that infringe a patent,
copyright, or trademark. For patents, this occurs when a person makes, uses, offers to sell, sells,

362 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011); Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal.,
480 U.S. 102 (1987).
363 J. McIntye Mach., 564 U.S. at 882 (Kennedy, J., plurality).
364 Id. at 882–83.
365 Id. at 883.
366 Id. at 889 (Breyer, J., concurring in the judgment) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297–98 (1980)).
367 Id. at 887–88. As an example of the type of conduct that would suffice to confer personal jurisdiction in the patent
context, the Federal Circuit has held that sending of a cease-and-desist letter to a company in California, along with
licensing of a U.S. patent in the United States, sufficed to meet the requirements for personal jurisdiction. Genetic
Veterinary Scis., Inc. v. LABOKLIN GmbH & Co. KG, 933 F.3d 1302, 1310–11 (Fed. Cir. 2019). But see Maxchief
Inv. Ltd. v. Wok & Pan, Ind., Inc., 909 F.3d 1134, 1138–39 (Fed. Cir. 2018) (concluding that simply sending
infringement notice letters to company’s lawyer in Tennessee was insufficient to confer personal jurisdiction in
Tennessee).
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or imports the patented invention without authorization.368 For copyrights, direct infringement
occurs when an entity violates any of the statutory rights enumerated by Congress;369 for
example, if the entity makes an unauthorized reproduction of a copyrighted work, makes a
derivative work, or distributes copies of the work for sale to the public.370 For trademarks, direct
infringement occurs when an entity uses or makes a counterfeit, copy, or imitation of the mark in
commerce in a manner that is likely to cause confusion, mistake, or deception.371
Indirect infringement, a second form of infringement, occurs when an entity does not itself
directly infringe the IP, but instead encourages or contributes to another’s infringing acts. For
patents, an entity is liable for indirect infringement when it “actively induces infringement of a
patent” by knowingly aiding and abetting another’s direct infringement.372 An entity induces
infringement when it knows of the relevant patent and that the acts it induced constitute patent
infringement.373 An entity is also liable for indirect patent infringement if it contributes to patent
infringement by selling or importing a material component of a patented article or method,
knowing that the article was especially made or adapted for infringement and does not have
substantial noninfringing use.374
An entity may indirectly infringe a copyright as well. One form of indirect copyright
infringement is vicarious infringement, where the entity “has the right and ability to supervise the
infringing activity and also has a direct financial interest in such activities.”375 Another form of
indirect copyright infringement is contributory infringement, where an entity with knowledge of
infringing activity “induces, causes or materially contributes to the infringing conduct of
another.”376 The Supreme Court has held that a defendant induces copyright infringement when it
“distributes a device with the object of promoting its use to infringe copyright, as shown by clear
expression or other affirmative steps taken to foster infringement.”377 The court clarified that
“mere knowledge of infringing potential or of actual infringing uses would not be enough . . . to
subject a distributor to liability.”378 Instead, inducement liability is premised “on purposeful,
culpable expression and conduct.”379

368 35 U.S.C. § 271(a).
369 17 U.S.C. § 501(a) (“Anyone who violates any of the exclusive rights of the copyright owner as provided by
sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into
the United States in violation of section 602, is an infringer of the copyright or right of the author . . . .”).
370 Id. § 106.
371 15 U.S.C. §§ 1114(1), 1125(a).
372 35 U.S.C. § 271(b); DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1305 (Fed. Cir. 2006) (en banc); see also Glob.-
Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765–65 (2011).
373 Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926 (2015). This can occur, for example, when a company
sells a product that infringes a patented method when used, thereby causing the company’s customers to infringe
directly, but does not use the product (and the patented method) itself. See, e.g., In re Bill of Lading Transmission &
Processing Sys. Patent Litig., 681 F.3d 1323, 1341–42 (Fed. Cir. 2012).
374 35 U.S.C. § 271(c).
375 See, e.g., Sony Corp. of Am. v. Univ. City Studios, Inc., 464 U.S. 417, 434–42 (1984); Fonovisa, Inc. v. Cherry
Auction, Inc., 76 F.3d 259, 261–64 (9th Cir. 1996).
376 Fonovisa, 76 F.3d at 264 (quoting Gershwin Pub’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d.
Cir. 1971)).
377 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936–37 (2005).
378 Id. at 937.
379 Id.
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An entity may also indirectly infringe a trademark. Vicarious trademark infringement requires a
showing that “the defendant and the infringer have an actual or apparent partnership, have
authority to bind one another in transactions, or exercise joint ownership or control over the
infringing product.”380 A defendant is liable for contributory trademark infringement if it
“intentionally induces another to infringe a trademark, or if it continues to supply its product to
one whom it knows or has reason to know is engaging in trademark infringement.”381
Chinese companies have been found liable for infringing IP in the United States. For example, in
2018, a Texas jury found that the Chinese technology company Huawei had willfully infringed
five patents owned by PanOptics Patent Management LLC relating to wireless and video-coding
technology, and awarded $10.6 million in damages.382 The judge later increased the award to
$13.2 million based on the jury’s finding that the infringement was willful.383 In 2019, the court
ordered Huawei to pay PanOptics’s attorney’s fees due to Huawei’s litigation conduct.384
Similarly, in 2010, a Virginia jury found that a family of Chinese corporations had committed
copyright infringement by conspiring to steal a U.S. corporation’s tire blueprints, reprinting the
blueprints without authorization, and using the blueprints to manufacture tires nearly identical to
the U.S. corporation’s products.385 The jury awarded $26 million in damages, which was affirmed
on appeal.386 Notably, one of the defendants’ primary arguments on appeal (which the court
rejected) was that they did not have sufficient contacts with Virginia for the court to exercise
personal jurisdiction.387
Trade Secret Misappropriation
Whereas the owner of a patent, copyright, or trademark may sue an entity for infringement (i.e.,
unauthorized use of IP), the owner of a trade secret may sue for misappropriation.388 A defendant
misappropriates a trade secret by acquiring a trade secret by improper means or disclosing a trade
secret that was acquired by improper means.389
Chinese companies have been found liable for misappropriation of U.S. trade secrets. For
example, in 2018, a California jury found that the Chinese company Elec-Tech International had
stolen trade secrets from lighting company Lumileds LLC.390 The jury found that while a former
employee was still employed at Lumileds, Elec-Tech’s chairman had paid him to steal trade

380 See, e.g., Grubbs v. Sheakley Grp., Inc., 807 F.3d 785, 793 (6th Cir. 2015).
381 Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 854 (1982).
382 Jack Queen, Huawei Owes Fees for ‘Rank Gamesmanship’ in Patent Loss, LAW360 (Nov. 15, 2019),
https://www.law360.com/articles/1220427.
383 Id.
384 Id.
385 Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 298, 308 (4th Cir. 2012). This was
part of a larger alleged scheme to steal the blueprints, “produce infringing tires, and sell them to entities that had
formerly purchased products from” the U.S. corporation. Id.
386 Id. at 298.
387 Id. at 300–06.
388 See generally 18 U.S.C. § 1836. In addition to civil suits, there may also be criminal penalties. See discussion infra
in “Economic Espionage and Criminal Trade Secret Misappropriation.”
389 18 U.S.C. § 1839(5) (defining “misappropriation”); id. § 1839(6) (defining “improper means”).
390 RJ Vogt, LED Co. Wins $66M In Trade Secrets Row With Chinese Rival, LAW360 (Aug. 13, 2018),
https://www.law360.com/articles/1072949/led-co-wins-66m-in-trade-secrets-row-with-chinese-rival.
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secrets.391 The employee “copied thousands of files containing trade secrets and other information
onto a portable storage device and then moved to China” where Elec-Tech began using the stolen
trade secrets in its products.392 The jury awarded Lumileds $66 million in compensation.393
Preliminary Remedies
In general, remedies are awarded only after a tribunal adjudicates the merits of the case. In certain
circumstances, however, an IP owner may be able to receive some relief even before the merits
are fully adjudicated.
An IP owner who succeeds on the merits may obtain an injunction—a court order preventing
further infringement by the defendant—under certain circumstances. At the beginning of the case,
an IP holder may also request that the court enter a preliminary injunction, barring the defendant
from infringement while the case is ongoing.394 To obtain a preliminary injunction, an IP owner
must establish (1) that he is “likely to succeed on the merits”; (2) that he is “likely to suffer
irreparable harm in the absence of preliminary relief”; (3) “that the balance of the equities tips in
his favor”; and (4) “that an injunction is in the public interest.”395 If the IP owner succeeds on the
merits, the preliminary injunction is generally converted into a permanent injunction barring
further infringement after the trial.396 It is possible that the IP owner will not succeed on the
merits. To guard against any harm to the defendant resulting from a preliminary injunction, the
court will require the IP owner to give “security in an amount that the court considers proper to
pay the costs and damages sustained by any party found to have been wrongfully enjoined.”397
Generally, a court issues a preliminary injunction after a hearing in which the IP owner and the
defendant present arguments and the court evaluates evidence.398 Sometimes, however,
infringement will be so damaging that an IP owner will suffer irreparable harm before it could
reasonably receive a preliminary injunction. In those circumstances, the IP owner may request a
temporary restraining order (TRO). To receive a TRO, the IP owner must establish “that
immediate and irreparable injury, loss, or damage will result” if the TRO is not granted.399
If the IP at issue is a trade secret, the court may, without providing notice to the defendant and
“only in extraordinary circumstances,” order “the seizure of property necessary to prevent the
propagation or dissemination of the trade secret that is the subject of the action.”400 Before
ordering seizure, however, the court must find

391 Id.
392 Id.
393 Id.
394 See, e.g., Commodores Entm’t Corp. v. McClary, 879 F.3d 1114, 1125 (11th Cir. 2018).
395 adidas Am., Inc. v. Skechers USA, Inc., 890 F.3d 747, 753 (9th Cir. 2018) (quoting Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)) (trademark); see also Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856
(9th Cir. 2017) (copyright); Mylan Institutional LLC v. Aurobindo Pharma Ltd., 857 F.3d 858, 865 (Fed. Cir. 2017)
(patent).
396 See, e.g., Commodores, 879 F.3d at 1121, 1127.
397 FED. R. CIV. P. 65(c).
398 See, e.g., Tinnus Enters., LLC v. Telebrands Corp., 846 F.3d 1190, 1197 (Fed. Cir. 2017); see also FED. R. CIV. P.
65(a)(1) (“The court may issue a preliminary injunction only on notice to the adverse party.”).
399 FED. R. CIV. P. 65(b)(1)(A).
400 18 U.S.C. § 1836(b)(2)(A)(i).
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1. other forms of relief “would be inadequate” because the holder of the property
would evade or not obey the order;401
2. “an immediate and irreparable injury will occur” absent the seizure;402
3. the harm to the IP owner outweighs the harm to the holder of the property, and
substantially outweighs the harm to any third parties;403
4. the IP owner is likely to succeed in showing that the information at issue is a
trade secret that the person against whom seizure would be ordered
misappropriated or conspired to misappropriate by improper means;404
5. the person against whom seizure would be ordered has actual possession of the
trade secret and any property seized;405
6. the IP owner “describes with reasonable particularity the matter to be seized and,
to the extent reasonable under the circumstances, identifies the location where the
matter is to be seized”;406
7. the person against whom seizure would be ordered or those assisting that person
“would destroy, move, hide, or otherwise make such matter inaccessible to the
court,” if the IP owner “were to proceed on notice to such person”;407 and
8. the IP owner “has not publicized the requested seizure.”408
If an IP owner cannot meet the requirements for a preliminary remedy, then he or she must wait
for adjudication of the case on the merits before receiving a remedy.
Post-Adjudication Remedies
If a court finds that an entity has infringed IP, two remedies are generally available: money
damages and permanent injunctions. Generally, damages awards require an infringer to pay
money to the rights owner to compensate for infringement. If a patent is infringed, for example,
then “the court shall award the claimant damages adequate to compensate for the infringement,
but in no event less than a reasonable royalty for the use made of the invention by the infringer,
together with interest and costs as fixed by the court.”409 If a patent owner can prove that it lost
profits due to the infringement, it can recover those lost profits instead.410 If the infringement was
willful, the court may triple the damages award.411
For copyright infringement, the owner may recover either its “actual damages and any additional
profits of the infringer” or “statutory damages.”412 Under the first option, the “actual damages”
are any damages actually suffered by the copyright owner, and the “profits” are “any profits of

401 Id. § 1836(b)(2)(A)(ii)(I).
402 Id. § 1836(b)(2)(A)(ii)(II).
403 Id. § 1836(b)(2)(A)(ii)(III).
404 Id. § 1836(b)(2)(A)(ii)(IV).
405 Id. § 1836(b)(2)(A)(ii)(V).
406 Id. § 1836(b)(2)(A)(ii)(VI).
407 Id. § 1836(b)(2)(A)(ii)(VII).
408 Id. § 1836(b)(2)(A)(ii)(VIII).
409 35 U.S.C. § 284.
410 See, e.g., Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275, 1283–90 (Fed. Cir. 2017).
411 35 U.S.C. § 284.
412 17 U.S.C. § 504(a).
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the infringer that are attributable to the infringement and not taken into account in computing the
actual damages.”413 Under the statutory damages provision, the copyright owner is entitled to
between $750 and $30,000 per infringed work “as the court considers just.”414
For trademark infringement, the owner may recover the defendant’s profits, any damages suffered
by the trademark owner, and the costs of the suit.415 If the suit involves the intentional use of a
counterfeit mark, then the trademark owner is entitled to triple the greater of defendant’s profits
and the trademark owner’s damages.416 In a case involving a counterfeit mark, the trademark
owner may instead elect statutory damages from $1,000 to $200,000 per counterfeit mark per
type of goods or services sold.417 If the court finds that use of the counterfeit mark was willful, it
may award up to $2,000,000 per counterfeit mark per type of goods or services sold.418
If a trade secret owner proves misappropriation, the court may award (1) damages for any actual
loss suffered by the trade secret owner by the misappropriation, as well as any unjust enrichment
received by the defendant;419 or (2) a reasonable royalty for the defendant’s unauthorized
disclosure or use.420 If the trade secret was misappropriated “willfully and maliciously,” the court
may award “exemplary damages” of up to two times the amount of the other damages.421
A successful IP owner may also obtain an injunction, for example, barring sales of products found
to infringe,422 or, in the case of trade secrets, “any actual or threatened misappropriation.”423 To be
eligible for an injunction, a rights owner must establish that (1) the injury from infringement was
irreparable; (2) remedies such as money damages are inadequate to compensate for the injury;
(3) a balancing of the hardships between the rights owner and the infringer counsels toward
granting an injunction; and (4) the public interest would not be disserved by an injunction.424 For
copyrights, the court may also impound all copies infringing a copyright and all articles used to
make such copies during the pendency of a suit; it may also order those infringing copies and
articles destroyed at the conclusion of the suit.425 For trademarks, the court may order the seizure
and/or destruction of infringing and counterfeit articles in some circumstances.426

413 Id. § 504(b).
414 Id. § 504(c)(1). The amount of statutory damages can be reduced to “not less than $200” if the infringer proves that
it “was not aware and had no reason to believe that his or her acts constituted an infringement.” Id. § 504(c)(2). The
statutory damages may be reduced in certain other circumstances as well. Id. Statutory damages may be increased to
$150,000 if the copyright owner proves that the infringement was willful. Id. § 504(c)(1).
415 15 U.S.C. § 1117(a). The Supreme Court recently held that willful trademark infringement is not a prerequisite to an
award of an infringer’s profits. Romag Fasteners Inc. v. Fossil Inc., 140 S. Ct. 1492, 1497 (2020).
416 15 U.S.C. § 1117(b).
417 Id. § 1117(c)(1).
418 Id. § 1117(c)(2).
419 Id. § 1836(b)(3)(B)(i).
420 Id. § 1836(b)(3)(B)(ii).
421 Id. § 1836(b)(3)(C).
422 35 U.S.C. § 283; 17 U.S.C. § 502; 15 U.S.C. § 1116.
423 15 U.S.C. § 1836(b)(3)(A). In extraordinary circumstances, the court may order the seizure of property necessary to
prevent the disclosure of a trade secret. See id. § 1836(b)(2); supra notes 400–408 and accompanying text.
424 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (patent); TD Bank N.A. v. Hill, 928 F.3d 259, 278
(3d Cir. 2019) (copyright); La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 879–80 (9th Cir.
2014) (trademark).
425 17 U.S.C. § 503.
426 15 U.S.C. §§ 1116(d), 1118.
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Import Controls
In addition to private actions, the U.S. government, in coordination with U.S. IP rights holders,
has several methods for preventing infringing products from entering the United States.
The International Trade Commission and Section 337 Investigations
The ITC administers a number of statutes concerning international trade, including investigations
relating to tariffs, treaties, imports, and competition of foreign industries with U.S. industries.427
The ITC also administers Section 337 of the Tariff Act of 1930 (Section 337), which allows it to
“investigate and issue decisions on unfair methods of competition and unfair acts in the
importation and/or sale of imported articles.”428 Section 337 establishes that the importation into,
or sale within the United States of articles that infringe a valid U.S. patent, copyright, or
trademark are unlawful actions the ITC may address.429 Although Section 337 investigations are
not limited to behavior arising from IP, in recent years many such investigations “have focused on
either patent, unregistered trademark, or trade secret claims.”430
Section 337 investigations are somewhat similar to civil infringement actions in district court,
with some important differences. Unlike infringement actions in district court, where the court
primarily adjudicates disputes between the parties, in Section 337 investigations the ITC itself
investigates whether there were unfair methods of competition or unfair acts in importation.431
Thus, an investigative attorney from the ITC’s Office of Unfair Import Investigations participates
as a party in the process to represent the public interest, along with the complainant and
respondent.432 Section 337 proceedings also differ from district court litigation in that the ITC’s
jurisdiction arises from the imported products targeted by the complaint, rather than any party
associated with the products.433 Thus, there may be fewer of the jurisdictional concerns described
above.434
Section 337 investigations are based on a complaint filed by a private party.435 First, the ITC
performs a pre-institution investigation to determine whether the complaint provides an adequate
basis for a full investigation.436 If the ITC determines that the complaint establishes such a basis,

427 See 35 U.S.C. § 1332.
428 William P. Atkins & Justin A. Pan, An Updated Primer on Procedures and Rules in 337 Investigations at the U.S.
International Trade Commission, 18 U. BALT. INTELL. PROP. L.J. 105 (2010).
429 19 U.S.C. § 1337(a)(1)(B)–(E).
430 Atkins & Pan, supra note 428, at 107 (“The majority of Section 337 investigations have focused on either patent,
unregistered trademark, or trade secret claims, in part because these types of rights are not subject to recordation with
the U.S. Customs Service.”). Most recent cases have involved allegations of patent infringement, but the ITC has also
adjudicated cases involving alleged trademark infringement or dilution, trade dress misappropriation and infringement,
false designation of origin, copyright infringement, or misappropriation of trade secrets, among others. Id. at 108–09
(collecting cases).
431 19 U.S.C. § 1337(b); 19 C.F.R. §§ 210.9–210.10.
432 Atkins & Pan, supra note 428, at 116; see also 19 C.F.R. § 210.3.
433 Atkins & Pan, supra note 428, at 119; see also 19 U.S.C. § 1337(a) (targeting conduct “in the importation of
articles”).
434 See discussion supra in “Remedial Issues: Jurisdiction and Territoriality.”
435 Atkins & Pan, supra note 428, at 112; 19 C.F.R. § 210.8. Other interested parties may join the action as co-
complainants. See Stephen E. Kabakoff & Andrew G. Strickland, Leveraging Standing and Domestic Industry
Activities of Third Parties in Patent-Based ITC Investigations, 26 INTELL. PROP. & TECH. L.J. 25, 27 (2014).
436 Atkins & Pan, supra note 428, at 112; 19 C.F.R. § 210.9.
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then the full investigation begins.437 An administrative law judge (ALJ) oversees the full
investigation, which is similar to district court litigation in that it includes discovery, motions
practice, and an ultimate hearing on whether there has been a violation.438 Following this process,
the ALJ is to issue an initial determination whether a violation of Section 337 has been shown;
that determination may be reviewed by the ITC commissioners, and the commissioners’
determination may be appealed to the Federal Circuit.439
To be entitled to relief, the party who files the Section 337 complaint “must show that a U.S.
industry that is dedicated to exploitation of the asserted IP rights either exists or is in the process
of being established.”440 To establish the existence of a domestic industry, a complaint must meet
both the “technical” and the “economic” elements.441 The technical element requires that the
complainant be performing activities based in the United States that exploit the particular IP
rights asserted by the complainant.442 The economic element requires either significant
investment in plant and equipment, significant employment of labor or capital, or substantial
investment in exploitation of the particular right, such as engineering, research and development,
or licensing.443
If a Section 337 violation is established, there are a number of possible remedies, including (1) a
general exclusion order, which forbids importation of products regardless of the source; (2) a
limited exclusion order, which forbids importation of those products by specific companies
designated in the complaint; (3) cease-and-desist orders that enjoin activities by U.S. entities;
(4) temporary exclusion or cease-and-desist orders during the pendency of the investigation; and
(5) consent orders, where the parties agree to an outcome, similar to a settlement in litigation.444
The President may disapprove any exclusion or cease-and-desist order within sixty days of
issuance; if he does not, then the order goes into effect.445 Notably, monetary damages are not
available through the ITC proceedings.446
The ITC has issued orders excluding Chinese products that infringe U.S. IP. For example, in 2007
the ITC granted Zippo Manufacturing Company an order excluding lighters manufactured by
several Chinese companies that infringed Zippo’s trademarked design.447 Similarly, in 2012, the
ITC issued general exclusion orders blocking the importation of products that infringed certain
Louis Vuitton trademarks.448 In 2019, the ITC issued a general exclusion order barring certain

437 Atkins & Pan, supra note 428, at 113; 19 U.S.C. § 1337(b).
438 Atkins & Pan, supra note 428, at 113–15.
439 Id.
440 Id. at 120 (citing 19 U.S.C. § 1337(a)(2)).
441 Id. at 121; see, e.g., InterDigital Commc’ns, LLC v. ITC, 707 F.3d 1295, 1298 (Fed. Cir. 2013).
442 Atkins & Pan, supra note 428, at 121.
443 Id. at 122 (citing 19 U.S.C. § 1337(a)(3)).
444 Id. at 129–33.
445 Id. at 135 (citing 19 U.S.C. § 1337(j)). Such disapprovals are reportedly rare. Id.
446 Id. at 129.
447 Certain Lighters, Inv. No. 337-TA-575, 2007 WL 9683834 (July 18, 2007) (General Exclusion Order); Certain
Lighters, Inv. No. 337-TA-575, 2007 WL 963194 (Feb. 21, 2007) (Initial Determination); Zippo Wins Order to Block
Import of Knock-Off Lighters, THE STAR (July 19, 2007),
https://www.thestar.com/business/2007/07/19/zippo_wins_order_to_block_import_of_knockoff_lighters.html.
448 Certain Handbags, Luggage, Accessories, & Packaging, Inv. No. 337-TA-754, 2012 WL 13046731 (May 30, 2012)
(Final Determination & Exclusion Order); Certain Handbags, Luggage, Accessories, & Packaging, Inv. No. 337-TA-
754, 2012 WL 864789 (Mar. 5, 2012) (Initial Determination); Carl C. Charneski & Tiffany W. Shimada, Does Louis
Vuitton’s Recent Victory at the US International Trade Commission Mark That Tribunal as a Viable Alternative to
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Chinese companies from importing particular products that can be used to mount phones on
vehicles on the basis that those products infringed various U.S. patents.449
U.S. Customs and Border Protection Seizures
In addition to its other enforcement duties, U.S. Customs and Border Protection (CBP) helps to
protect the rights of U.S. IP owners by seizing counterfeited or pirated goods at the border.450
Under 19 U.S.C. § 1595a(c)(2)(C), “merchandise which is introduced or attempted to be
introduced into the United States . . . may be seized and forfeited if . . . it is merchandise or
packaging in which copyright, trademark, or trade name violations are involved.”451 In FY2018,
CBP seized 33,810 infringing items.452 If the seized goods had been genuine, the total estimated
manufacturer’s suggested retail price (MSRP) of the goods was nearly $1.4 billion.453 The vast
majority of seized goods originated from either mainland China or Hong Kong (46% and 41%,
respectively, for a total of 87%).454 Goods seized from China and Hong Kong also accounted for
85% of the total MSRP of seized products (54% and 31%, respectively) in FY2018.455 This was
an increase from the 78% combined total percentage of MSRP in 2017; the percentage from
mainland China alone increased from 46% in FY2017 to 54% in FY2018.456
Holders of trademarks and copyrights can assist CBP by recording a registered trademark or
copyright with CBP, along with a supporting image.457 Providing this information helps CBP
personnel determine whether a particular good may be infringing IP.458 Rights owners can also
file e-Allegations notifying CBP of potentially infringing shipments or conduct.459 Some rights
owners create product identification guides that they provide to CBP or devise product training
sessions for CBP personnel to assist with infringement determinations.460

District Court?, WORLD TRADEMARK REV. (Dec. 2012 /Jan. 2013), https://www.worldtrademarkreview.com/
enforcement-and-litigation/does-louis-vuittons-recent-victory-us-international-trade-commission.
449 Certain Mounting Apparatuses for Holding Portable Elec. Devices & Components Thereof, Inv. No. 337-TA-1086,
2019 WL 2897808 (June 24, 2019) (General Exclusion Order); Dani Kass, ITC Blocks Counterfeit Phone Mounting
Device Imports, LAW360 (June 20, 2019), https://www.law360.com/articles/1171169/itc-blocks-counterfeit-phone-
mounting-device-imports.
450 U.S. CUSTOMS & BORDER PROT., INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT 4 (Jan. 2017),
https://www.cbp.gov/sites/default/files/assets/documents/2017-Jan/ipr_guide.pdf.
451 19 U.S.C. § 1595a(c)(2)(C); see also U.S. CUSTOMS & BORDER PROT., CUSTOMS DIRECTIVE NO. 2310-010A:
DETENTION AND SEIZURE AUTHORITY FOR COPYRIGHT AND TRADEMARK VIOLATIONS 3 (Dec. 2002),
https://www.cbp.gov/sites/default/files/documents/2310-010a_3.pdf (citing 19 U.S.C. § 1595a(c)(2)(C) as authority for
seizure). Legislation has also been proposed that would allow CBP to seize goods that infringe a design patent. See
Counterfeit Goods Seizure Act of 2019, S. 2987, 116th Cong. (2019).
452 FISCAL YEAR 2018 SEIZURE STATISTICS, supra note 160, at 6.
453 Id.
454 Id. at 16.
455 Id. at 24.
456 Id. at 24–25.
457 INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT, supra note 450, at 6; see also Intellectual Property Rights e-
Recordation, U.S. CUSTOMS & BORDER PROT., https://iprr.cbp.gov/ (last visited Aug. 18, 2020).
458 INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT, supra note 450, at 6.
459 Id. at 7; see also e-Allegations, U.S. CUSTOMS & BORDER PROT., https://eallegations.cbp.gov/Home/Index2 (last
visited Aug. 18, 2020).
460 INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT, supra note 450, at 8–9.
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CBP also enforces ITC exclusion orders, including those issued as a result of Section 337
investigations.461 In FY2018, CBP seized 172 shipments and excluded 31 shipments.462 The
estimated MSRP of the seized goods was $968,803.463
Criminal Prosecutions
In addition to civil actions, in some circumstances IP violations implicate U.S. criminal laws.464
The following is not necessarily an exhaustive list of possibly applicable criminal statutes;
instead, it is a representative list of the statutes and penalties that may be applicable, depending
on the circumstances of a particular theft.
Criminal Copyright and Trademark Infringement
A copyright infringement may be criminally prosecuted if it is willful and committed (1) “for the
purposes of commercial advantage or private financial gain”;465 (2) “by the reproduction or
distribution” of one or more copies of one or more copyrighted works with a total retail value of
more than $1,000 during a 180-day period;466 or (3) by distributing a copyrighted work “being
prepared for commercial distribution,” which the distributor knew or should have known was
intended for commercial distribution, “by making it available on a computer network accessible
to members of the public.”467 Depending on the particular circumstances of the case, individuals
and organizations who violate these provisions are subject to a fine (up to $250,000 for
individuals and $500,000 for organizations), imprisonment of up to ten years, forfeiture of any
property used to commit or facilitate the offense, and restitution to the victim.468
In addition to infringement itself, in certain circumstances it may be a criminal offense to traffic
in counterfeit labeling relating to a copyrighted work. Specifically, a person may be criminally
prosecuted if they knowingly traffic in a counterfeit or illicit label affixed to, enclosing, or
accompanying a copyrighted work, or traffic in counterfeit documentation or packaging.469
Violators are subject to a fine of up to $250,000 for individuals and $500,000 for organizations
and/or imprisonment of up to five years.470
Some copyright holders attempt to protect recordings of their works (for example, DVDs) by
using technology such as digital rights management (DRM). Circumventing those systems may
result in criminal liability. Specifically, it is a criminal offense to “willfully and for purposes of
commercial advantage or private financial gain”471 either (1) descramble, decrypt, or otherwise
“avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of

461 FISCAL YEAR 2018 SEIZURE STATISTICS, supra note 160, at 32.
462 Id.
463 Id.
464 See, e.g., Sean Lavin et al., Intellectual Property Crimes, 56 AM. CRIM. L. REV. 1101 (2019); CRS Report RL34109,
Intellectual Property Rights Violations: Federal Civil Remedies and Criminal Penalties Related to Copyrights,
Trademarks, Patents, and Trade Secrets.
465 17 U.S.C. § 506(a)(1)(A).
466 Id. § 506(a)(1)(B).
467 Id. § 506(a)(1)(C).
468 18 U.S.C. §§ 2319, 2323.
469 Id. § 2318.
470 Id.
471 17 U.S.C. § 1204 (criminalizing certain violations of 17 U.S.C. §§ 1201 and 1202).
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the copyright owner” that effectively controls access to a copyrighted work;472 (2) manufacture,
import, offer to the public, provide, or otherwise traffic in any technology, product, service,
device, component, or part thereof that is primarily designed or produced for the purpose of
circumventing copyright protection measures;473 or (3) knowingly and with the intent to induce,
enable, facilitate, or conceal infringement, provide, distribute, or import for distribution false
copyright management information.474 Penalties for a first offense include a fine up to $500,000
and imprisonment for not more than five years; those penalties increase to up to $1,000,000 and
ten years’ imprisonment for any subsequent offense.475
Trademark infringement may also be criminal in certain circumstances. In particular, it is a
criminal offense to intentionally traffic or attempt to traffic in (1) goods and services and
knowingly use a counterfeit mark on or in connection with those goods or services; (2) labels or
other similar packaging, “knowing that a counterfeit mark has been applied thereto, the use of
which is likely to cause confusion, to cause mistake, or to deceive”; (3) “goods or services
knowing that such good or service is a counterfeit military good or service the use, malfunction,
or failure of which is likely to cause serious bodily injury or death, the disclosure of classified
information, impairment of combat operations, or other significant harm to a combat operation, a
member of the Armed Forces, or to national security”; or (4) a drug when one knowingly uses a
counterfeit mark in connection with the drug.476
Depending on the circumstances of the offense, the maximum penalties range from fines of $2
million to $5 million and up to life in prison for an individual, or $5 million to $15 million for an
organization.477 The offender is also subject to forfeiture of any property used to commit or
facilitate the offense and restitution to the victim.478
China has been a source of counterfeit goods for which individuals have been prosecuted for
criminal trademark infringement. For example, in 2010, a Virginia jury convicted two individuals
of criminal trademark infringement.479 The government argued at trial that the defendants
“operated a massive international manufacturing, import and wholesale counterfeit goods
business” by importing infringing products from China.480 The government’s investigation

472 Id. § 1201.
473 Id.
474 Id. § 1202. Section 1202(c) defines “copyright management information” as certain types of information conveyed
in connection with copies of a work including, for example, the work’s title, the name (or other identifying
information) of the work’s author, the copyright owner, and terms and condition for use, among others.
475 Id. § 1204.
476 18 U.S.C. § 2320(a).
477 Specifically, the maximum penalties are generally a fine of $2 million for an individual ($5 million for an
organization) and/or imprisonment of up to ten years for a first offense. Id. § 2320(b). For a second or subsequent
offense, or an offense that involves the knowing or reckless causation of or attempt to cause serious bodily injury, the
penalties increase to up to $5 million for an individual and $15 million for an organization, and/or imprisonment for up
to twenty years. Id. Where an individual knowingly or recklessly causes death from the offense, she may be fined up to
$5 million and/or imprisoned for life; and an organization may be fined up to $15 million. Id.
478 Id. §§ 2320(b), 2323.
479 Press Release, U.S. Dep’t of Justice, Jury Convicts Two New York Importers in One of the Largest Counterfeit
Goods Prosecutions in U.S. History (June 11, 2010), https://www.justice.gov/opa/pr/jury-convicts-two-new-york-
importers-one-largest-counterfeit-goods-prosecutions-us-history.
480 Id.
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uncovered that the defendants “imported over 300,000 counterfeit luxury handbags and wallets
into the United States from [China] in the names of different companies.”481
Economic Espionage and Criminal Trade Secret Misappropriation
Several statutes criminalize the theft of trade secrets under certain circumstances. For example, it
is a criminal offense to commit “economic espionage.”482 This crime requires the government to
prove that a person, “intending or knowing that the offense will benefit any foreign government,
foreign instrumentality, or foreign agent, knowingly” (1) stole, or without authorization
appropriated, took, carried away, or concealed, or by fraud, artifice, or deception obtained a trade
secret;483 (2) without authorization copied, duplicated, sketched, drew, photographed,
downloaded, uploaded, altered, destroyed, photocopied, replicated, transmitted, delivered, sent,
mailed, communicated, or conveyed a trade secret;484 (3) received, bought, or possessed a trade
secret, knowing that it has “been stolen or appropriated, obtained, or converted without
authorization”;485 or (4) attempted to commit or conspired to commit any of those acts.486
A violator of these provisions will be fined not more than $5,000,000 and/or imprisoned for up to
15 years.487 An organization that violates these provisions will be fined not more than the greater
of $10 million and three times the value of the stolen trade secret to the organization.488
Certain thefts of trade secrets are criminal as well as civil offenses. Thus, it is a criminal offense
for anyone, “with the intent to convert a trade secret, that is related to a product or service used or
intended for use in interstate or foreign commerce, to the economic benefit of anyone other than
the owner thereof,” and who also intends or knows that the offense will injure any owner of the
trade secret, to knowingly (1) steal, or without authorization appropriate, take, carry away, or
conceal, or by fraud, artifice, or deception obtain such information;489 (2) without authorization
copy, duplicate, sketch, draw, photograph, download, upload, alter, destroy, photocopy, replicate,
transmit, deliver, send, mail communicate, or convey such information;490 (3) receive, buy, or
possess such information, knowing that it was “stolen or appropriated, obtained, or converted
without authorization”;491 or (4) attempt or conspire to commit any of those acts.492 Anyone who
violates these provisions will be fined and/or imprisoned for up to 10 years.493 Any organization
that violates these provisions will be fined not more than the greater of $10 million or three times
the value of the stolen trade secret to the organization.494

481 Id.
482 18 U.S.C. § 1831.
483 Id. § 1831(a)(1).
484 Id. § 1831(a)(2).
485 Id. § 1831(a)(3).
486 Id. §§ 1831(a)(4)–(5).
487 Id. § 1831(a).
488 Id. § 1831(b).
489 Id. § 1832(a)(1).
490 Id. § 1832(a)(2).
491 Id. § 1832(a)(3).
492 Id. § 1832(a)(5).
493 Id. § 1832(a).
494 Id. § 1832(b).
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Individuals associated with the Chinese government have been indicted under these provisions. In
2014, the U.S. Department of Justice (DOJ) announced that “five Chinese military hackers” had
been indicted for economic espionage and criminal trade secret theft.495 The indictment alleged
that “the defendants conspired to hack into American entities, to maintain unauthorized access to
their computers and to steal information from those entities that would be useful to their
competitors in China, including state-owned enterprises.”496 According to DOJ, the indictment
alleged that in some cases “the conspirators stole trade secrets that would have been particularly
beneficial to Chinese companies at the time they were stolen.” In other cases, the conspirators
“stole sensitive, internal communications that would provide a competitor, or an adversary in
litigation, with insight into the strategy and vulnerabilities of the American entity.”497 In
announcing the indictment, DOJ noted that the defendants were known members of the Chinese
military.498
Recently, DOJ also announced indictments against two Chinese individuals who allegedly
“probed for vulnerabilities in computer networks of companies developing COVID-19 vaccines,
testing technology, and treatments.”499 Those intrusions were allegedly part of “a hacking
campaign lasting more than ten years to the present,” targeting companies “with high technology
industries” in eleven countries.500 The indictment charged the alleged hackers with conspiracy to
commit theft of trade secrets and conspiracy to commit computer fraud, among other charges.501
Computer Fraud and Abuse Act
IP violations involving cyber intrusions may violate the Criminal Fraud and Abuse Act
(CFAA),502 which criminalizes intentionally accessing a computer “without authorization or
exceed[ing] authorized access,” and thereby obtaining information contained in a financial
record, information from “any department or agency of the United States,” or “information from
any protected computer.”503 The CFAA also criminalizes unauthorized access or exceeding
authorized access to a protected computer “knowingly and with intent to defraud,” which results

495 Indictment, United States v. Wang Dong et al., No. 14-cr-118 (W.D. Pa. May 1, 2014); Press Release, U.S. Dep’t of
Justice, U.S. Charges Five Chinese Military Hackers for Cyber Espionage Against U.S. Corporations and a Labor
Organization for Commercial Advantage (May 19, 2014), https://www.justice.gov/opa/pr/us-charges-five-chinese-
military-hackers-cyber-espionage-against-us-corporations-and-labor. The defendants were also charged with violations
of the Computer Fraud and Abuse Act. See id.; see also discussion infra in “Computer Fraud and Abuse Act.”
496 See U.S. Charges Five Chinese Military Hackers, supra note 495.
497 Id.
498 Id. (quoting statement of then-U.S. Atty. Gen. Eric Holder).
499 Indictment, United States v. Li Xiaoyu et al., No. 4:20-cr-6019, at 1 (E.D. Wash. July 7, 2020); Press Release, U.S.
Dep’t of Justice, Two Chinese Hackers Working with the Ministry of State Security Charged with Global Computer
Intrusion Campaign Targeting Intellectual Property and Confidential Business Information, Including COVID-19
Research (July 21, 2020), https://www.justice.gov/opa/pr/two-chinese-hackers-working-ministry-state-security-
charged-global-computer-intrusion.
500 Two Chinese Hackers Working with the Ministry of State Security, supra note 499.
501 Id.; see also Li Xiaoyu, No. 4:20-cr-6019, at 1.
502 18 U.S.C. § 1030.
503 Id. § 1030(a)(2). The statute defines a “protected computer” as a computer that is (1) exclusively for the use of a
financial institution or the U.S. government, or if not exclusivity for such use then used by or for a financial institution
or the government and the offending conduct “affects that use” by the financial institution or the government; or (2) a
computer “used in or affecting interstate or foreign commerce or communication, including a computer located outside
the United States that is used in a manner that affects interstate or foreign commerce or communication of the United
States.” Id. § 1030(e)(2).
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in furthering the intended fraud and obtainment of anything of value.504 Finally, the CFAA
criminalizes causing damage as a result of accessing a protected computer without
authorization.505
Depending on the particular actions that lead to conviction, violating the CFAA carries a penalty
of a fine and/or up to twenty years in prison.506 The court must also order that the violator forfeit
any interest in personal property used to commit or facilitate the violation, as well as any property
derived from the violation.507 Any person who “suffers damage or loss” from a violation of the
CFAA may pursue a civil action against the violator and obtain compensatory damages, an
injunction, and/or other relief.508
These provisions have been used to target Chinese hacking attempts in the United States. In 2017,
DOJ announced that three Chinese nationals had been indicted under the CFAA for hacking U.S.
corporations for private advantage.509 The indictment alleged that “the defendants conspired to
hack into private corporate entities in order to maintain unauthorized access to, and steal sensitive
internal documents and communications from, those entities’ computers.”510 The indictment
alleged that the Chinese nationals stole trade secrets, emails, and usernames and passwords for
authorized users, among other information.511
Conclusion
There are numerous ways in which the Chinese government and other Chinese entities have
allegedly misappropriated, infringed, undermined, failed to enforce, or otherwise violated IP
rights. Both IP rights holders and U.S. authorities, depending on the nature of the violations, may
pursue a variety of existing legal remedies. Moving forward, Congress may choose to consider
whether these existing legal options are sufficient to deter or remedy continued practices or future
IP violations.

504 Id. § 1030(a)(4). Such conduct is not an offense if “the thing obtained consists only of the use of the computer and
the value of such use is not more than $5,000 in any 1-year period.” Id.
505 Id. § 1030(a)(5). The CFAA criminalizes other acts, less likely to be implicated by IP theft, as well. See, e.g., id.
§ 1030(a)(1) (disclosure of national security or foreign relations information to others after accessing a computer
without authorization or exceeding authorized access); id. § 1030(a)(3) (accessing a nonpublic computer of a
department or agency of the United States); id. § 1030(a)(6) (trafficking in passwords or similar information that may
be used to access a computer without authorization); id. § 1030(a)(7) (transmitting, with intent to extort money or a
thing of value, any threat to damage a protected computer, obtain or impair the confidentiality of information from a
protected computer without authorization or in excess of authorized access, or demand money or a thing of value in
relation to damage to a protected computer).
506 Id. § 1030(c).
507 Id. § 1030(i)–(j).
508 Id. § 1030(g).
509 Indictment, United States v. Wu Yingzhuo et al., No. 17-cr-247 (W.D. Pa. Sept. 13, 2017); Press Release, U.S.
Dep’t of Justice, U.S. Charges Three Chinese Hackers Who Work at Internet Security Firm for Hacking Three
Corporations for Commercial Advantage (Nov. 27, 2017), https://www.justice.gov/opa/pr/us-charges-three-chinese-
hackers-who-work-internet-security-firm-hacking-three-corporations.
510 Id.
511 Id.
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Author Information

Kevin J. Hickey, Coordinator
Brandon J. Murrill
Legislative Attorney
Legislative Attorney

Nina M. Hart
Kevin T. Richards
Legislative Attorney
Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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Congressional Research Service
R46532 · VERSION 1 · NEW
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