WTO上訴仲裁庭就歐盟與中國知識產權爭議做出最終裁決｜附仲裁裁決全文

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“仲裁庭維持專家組裁決，認定中方禁訴令未影響其他世貿成員保護專利權，也不屬于世貿規則所管轄的知識產權實施措施?！?/b>

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：

商務部條約法律司負責人就世貿組織公布中歐有關世貿爭端案件上訴仲裁裁決事答記者問

有媒體問：我們注意到，日內瓦時間7月21日晚，世貿組織就歐盟訴中國標準必要專利禁訴令世貿爭端案（DS611）公布“多方臨時上訴仲裁安排”（MPIA）項下的裁決。請問中方對此有何評論？

答：我注意到你所說的情況。仲裁庭維持專家組裁決，認定中方禁訴令未影響其他世貿成員保護專利權，也不屬于世貿規則所管轄的知識產權實施措施，中方對此表示歡迎。同時，仲裁庭在缺乏規則依據的情況下，錯誤地認為世貿成員應避免影響專利權人在其他成員境內實施其權利。此舉不當擴大世貿成員義務，中方對此表示不滿。下一步，中方將認真評估相關裁決，按照世貿規則妥善處理。

中方認可MPIA對于通過法律途徑有效處理貿易爭端的價值，將與其他MPIA參加方一道，繼續致力于推動MPIA良好有效實施，共同維護以規則為基礎的多邊貿易體制。

附：仲裁判決

（原標題：WTO上訴仲裁庭就歐盟與中國知識產權爭議做出最終裁決｜附仲裁裁決全文）

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來源：IPRdaily綜合商務部官網、WTO官網、國際法務