WTO上诉仲裁庭就欧盟与中国知识产权争议做出最终裁决｜附仲裁裁决全文

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“仲裁庭维持专家组裁决，认定中方禁诉令未影响其他世贸成员保护专利权，也不属于世贸规则所管辖的知识产权实施措施。”

Arbitrators Issue Award in EU-China Intellectual Property Dispute

On 21 July, the WTO circulated the arbitration award in the proceedings initiated by the European Union under Article 25 of the Dispute Settlement Understanding to review the findings of a WTO dispute panel in “China — Enforcement of Intellectual Property Rights” (DS611). The arbitrators recommend that China bring into conformity with the TRIPS Agreement those measures found in this Award, and in the Panel Report as modified by this Award, to be inconsistent with that Agreement.

The European Union challenged aspects of the Panel's findings with respect to Article 1.1, first sentence of the TRIPS Agreement and also challenged the Panel's findings with respect to Articles 28.1, 28.2, and 44.1 read in conjunction with Article 1.1, first sentence, as well as Article 41.1 of the TRIPS Agreement.

1. With respect to Article 1.1, first sentence, the arbitrators considered that the Panel erred in its interpretation of the obligation in Article 1.1, first sentence to “give effect” to the provisions of the TRIPS Agreement in a WTO Member'sterritory, and found that the corollary of that obligation is to do so without frustrating the functioning of the systems of protection and enforcement of IP rights implemented by other Members in their respective territories. 

2. With respect to Article 28.1, read in conjunction with Article 1.1, first sentence, the arbitrators considered that the Panel erred in finding that this obligation is limited to ensuring a patent owner's exclusive rights in each Member's domestic legal system and nothing more. Instead, the arbitrators found that Article 28.1, read in conjunction with Article1.1, first sentence, requires that Members not frustrate a patent owner's ability to exercise the exclusive rights conferred on it by another WTO Member under that provision, i.e. to prevent third parties not having the patent owner's consent from making, using, offering for sale, selling, or importing the patented product. The arbitrators considered the European Union's request to complete the analysis with respect to ASI policy and found that the European Union had demonstrated that the ASI policy is inconsistent with Article 28.1, read in conjunction with Article 1.1, first sentence. 

3. With respect to Article 28.2, read in conjunction with Article 1.1, first sentence, the arbitrators considered that the Panel erred in finding that this obligation is limited to ensuring a patent owner's “right… to conclude licensing contracts” in each Member's domestic legal system and nothing more. Instead, the arbitrators found that Article 28.2, read in conjunction with Article 1.1, first sentence, requires that Members not frustrate a patent owner's ability to exercise its “right… to conclude licensing contracts” as conferred in the territory of another WTO Member under that provision. The arbitrators considered the European Union's request to complete the analysis with respect to ASI policy and found that the European Union had demonstrated that the ASI policy is inconsistent with Article 28.2, read in conjunction with Article 1.1, first sentence.

4. With respect to Article 44.1, read in conjunction with Article 1.1, first sentence, the arbitrators upheld the Panel's finding, albeit for different reasons, that the European Union had not demonstrated that the ASI policy is inconsistent with Article 44.1, read in conjunction with Article 1.1, first sentence.

5. With respect to Article 41.1, the arbitrators upheld the Panel's finding that the obligation in the second sentence of Article 41.1 is not applicable to the ASI policy, as the ASI policy is not an enforcement procedure as specified in PartIII of the TRIPS Agreement.

China challenged the Panel's application of the legal standard for the existence of an unwritten measure with respect to the ASI policy, and also challenged the Panel's finding with respect to the case Xiaomi v. InterDigital under Article 63.1 of the TRIPS Agreement. 

1. With respect to the Panel's application of the legal standard for the existence of an unwritten measure, the arbitrators upheld the Panel's finding that the EuropeanUnion had provided sufficient evidence and argumentation to demonstrate the existence of the ASI policy and that its specific nature is that of a rule or norm of general and prospective application.

2. With respect to Article 63.1, the arbitrators upheld the Panel's finding that the decision issuing an ASI in Xiaomi v. InterDigital, read together with the reconsideration decision in the same case, is a judicial decision "of general application" within the meaning of Article 63.1 of the TRIPS Agreement.

附：

商务部条约法律司负责人就世贸组织公布中欧有关世贸争端案件上诉仲裁裁决事答记者问

有媒体问：我们注意到，日内瓦时间7月21日晚，世贸组织就欧盟诉中国标准必要专利禁诉令世贸争端案（DS611）公布“多方临时上诉仲裁安排”（MPIA）项下的裁决。请问中方对此有何评论？

答：我注意到你所说的情况。仲裁庭维持专家组裁决，认定中方禁诉令未影响其他世贸成员保护专利权，也不属于世贸规则所管辖的知识产权实施措施，中方对此表示欢迎。同时，仲裁庭在缺乏规则依据的情况下，错误地认为世贸成员应避免影响专利权人在其他成员境内实施其权利。此举不当扩大世贸成员义务，中方对此表示不满。下一步，中方将认真评估相关裁决，按照世贸规则妥善处理。

中方认可MPIA对于通过法律途径有效处理贸易争端的价值，将与其他MPIA参加方一道，继续致力于推动MPIA良好有效实施，共同维护以规则为基础的多边贸易体制。

附：仲裁判决

（原标题：WTO上诉仲裁庭就欧盟与中国知识产权争议做出最终裁决｜附仲裁裁决全文）

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来源：IPRdaily综合商务部官网、WTO官网、国际法务