U.S.-China trade talks making scant progress on make-or-break intellectual property problem

WASHINGTON – Ever since negotiators from the United States and China sat down in Beijing after a Christmas meltdown in global markets, Donald Trump has sought to calm investors and claim his trade talks are making great strides. But that glosses over a more uncomfortable reality.

According to people close to the discussions, the two sides have so far made little progress on the issue that any deal Trump strikes with China may ultimately be judged on: ending what the U.S. has dubbed decades of state-coordinated Chinese theft of American intellectual property.

China’s alleged IP theft and its related practice of forcing foreign companies to hand over technology to gain access to its market formed a large part of the agenda for the three days of talks in early January. Yet the discussions amounted more to an airing of grievances than constructive negotiations, according to participants and others briefed on the talks.

Deputy U.S. Trade Representative Jeffrey Gerrish spent much of the time citing a U.S. report used to justify the tariffs imposed on some $250 billion in Chinese goods, one person present at the talks said. Chinese officials responded by repeating long-standing denials of any wrongdoing and asked the U.S. for proof.

The lack of progress in discussions on structural issues such as IP was confirmed by Robert Lighthizer, the U.S. Trade Representative, in a meeting with lawmakers last week, according to congressional aides. His office declined to comment.

China’s Ministry of Commerce and the National Intellectual Property Administration didn’t immediately respond to faxes sent outside regular business hours.

As Chinese leader Xi Jinping prepares to send top economic emissary Liu He to Washington for talks on Jan. 30 and 31, the IP stalemate gets to the heart of Trump’s trade wars and questions over his ability to turn the leverage he’s created with tariffs into meaningful Chinese policy changes. It also points to the potential political fallout.

“Any trade deal worth making will clearly address China’s rampant IP theft and forced technology transfers, both for the good of the American economy and American workers, as well our national security,” said Sen. Marco Rubio, a leading Republican proponent of taking a tough line on China.

Likewise, Sen. Ron Wyden, the ranking Democrat on the Finance Committee, said any deal will have to “directly address the basis for the tariffs, which includes China’s practices on IP theft and technology transfer.”

“Anything less,” Wyden said, “would leave American workers and employers vulnerable to China’s predatory practices.”

Trump and his aides have themselves portrayed the protection of U.S. IP as an existential one for the American economy.

In a speech last November, Peter Navarro, a White House trade adviser, called out Beijing’s march “to acquire the technologies and intellectual property of the world by any means necessary” and control artificial intelligence, robotics and other emerging industries. Or, as he put it, “the kinds of industries going forward where our sons and daughters and their children will find the good jobs at good wages.”

The tussle over China’s treatment of IP gets at one of the central complaints levied by foreign companies either doing business in China or competing with increasingly aggressive Chinese rivals: that China’s rapid rise has as much to do with a state-coordinated campaign to sprint up the value chain as it does with reforms over the past 40 years.

That is part of the reason business groups who have otherwise opposed Trump’s tariffs have been more willing to back his approach to China and are now insisting that any deal must tackle IP issues to be meaningful.

“We have not been particularly enamored of the tariff route that the administration has gone with. But there is no question that these are serious issues,” said Charles Freeman, a top Asia executive for the U.S. Chamber of Commerce. “We agree with the diagnosis. Just not the prescription.”

A big priority for many industries may be a short-term deal to de-escalate tensions between the world’s two largest economies, said Jimmy Goodrich, of the Semiconductor Industry Association. But “it would be a shame to see the leverage created only be used to get minimal outcomes.’

China publicly denies the U.S.’s claims regarding IP theft and the forced transfer of technology. It insists that it has lived up to the commitments it made when it joined the World Trade Organization in 2001, including by establishing special IP courts.

Beijing has also, in recent months, unveiled other measures to appease the Trump administration.

Days after Xi and Trump agreed to a tariff truce on Dec. 1, Chinese officials issued a proposed new IP law that would ban companies caught stealing technology from issuing bonds or accessing other financing.

Earlier this month, the government said it would accelerate the passage of a new foreign investment law that includes administrative measures to protect the IP of foreign companies and ease pressure on them to transfer technology to local partners.

China has also emphasized an increase in trademark enforcement cases, with 31,000 investigations conducted in 2018 and big foreign brands such as Lego, Alfred Dunhill and New Balance among the beneficiaries.

Still, international business groups remain skeptical.

While the draft foreign investment law would nominally give international companies the same national treatment as domestic rivals in IP matters, “the very name ‘Foreign Investment Law’ maintains the distinction between Chinese and foreign companies,” said Mats Harborn of the European Union Chamber of Commerce in China.

Erin Ennis, a senior vice president of the U.S.-China Business Council, said that while the proposed IP law is an improvement, it still falls short by not including criminal penalties such as jail time. It also doesn’t address the myriad regulations and other ways in which regional governments and Chinese companies force foreign companies to hand over IP.

“Some of this is in the weeds,” Ennis said. “But that’s where the problems are happening.”