When do limits on majorities enhance democratic rule, and when do they undermine it? Constraints on majorities are, of course, essential to modern democracy. Liberal democracy is not simply a system of majority rule: It combines majority rule and protection of minority rights. But constraints on electoral majorities can also subvert democracy. This essay offers a new framework for understanding the ambiguous relationship between countermajoritarianism and contemporary democracy. Lumping all countermajoritarian institutions into the same category can lead us to preserve and prescribe outdated and undemocratic institutions that distort political competition and may undermine democratic legitimacy. This essay makes the case for a robust but minimalist countermajoritarianism. Although special protections for powerful minorities may have helped to secure the historical passage to democracy, today the healthiest democracies empower majorities.
Thursday, January 2, 2025
“IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare” | Committee Repository | U.S. House of Representatives
“IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare” | Committee Repository | U.S. House of RepresentativesHearing: “IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare”
Hearing: “IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare”Subcommittee on Courts, Intellectual Property, and the Internet (Committee on the Judiciary)
By Mark Cohen （柯恒） on 2025/01/02
On December 18, 2024, I was honored to testify before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet. These hearings were on “IP and Strategic Competition with China.” This hearing was concerned with “Patents, Standards, and Lawfare.” I was joined by the Hon. Walter Copan, former Commerce Under Secretary in charge of NIST, Kent Baker, Esq., from Ublox, and Prof. Tom Cotter from the University of Minnesota Law School. Our written and oral testimony can be found here.
Perhaps it was the spirit of the season, the consensus on the Hill regarding China, or the higher level of bipartisanship found on IP issues - but this hearing showed remarkable bipartisanship and collegiality.
In my testimony, I pointed out that SEPs present unique challenges to China. Although patents are private rights, standards are intended to advance public goals. China’s subsidization of patent filings and participation in standards-setting bodies further align SEP litigation with the interests of the State. I also discussed my research involving the diverse translations of “FRAND” into Chinese.
I expressed concern about the potential erosion of national and most favored national treatment if we continue to treat China or Chinese companies differently from other countries. The first recourse in expressing our concerns over SEP litigation with China should be to negotiate and, if necessary, exploit multilateral mechanisms such as WTO dispute resolution procedures. Prof. Cotter wisely added that any retaliation brought by the United States for perceived unfair practices would likely elicit counterretaliation by China.
Prof. Cotter also pointed out that the United States has long utilized many tools we are currently complaining about, such as anti-suit injunctions (ASIs). While this is generally true, I also believe that China’s implementation of these practices is often markedly different from that of the United States. In the past several years, I have written about several “false friends” involving transplanted IPR activities undertaken in China compared to the United States. These transplants include anti-suit injunctions, administrative enforcement of IP rights, and even disciplinary action by local bar authorities against unethical IP lawyers.
At the time of the hearing, China’s ardor for ASIs seemed to have chilled since the EU filed a WTO dispute regarding China’s ASI practices. This informal suspension of ASIs may be coming to an end in light of the Supreme People’s Court issuing its first anti-ASI on behalf of Huawei against Netgear at the Unified Patent Court’s Local Division and the Munich 1 Regional Court, which was announced on December 24, 2024.
Kent Baker also pointed out the difficulties of determining essentiality in SEPs and the costs of participating in standards committees as an SME. Walter Copan underscored the role of the United States as a major exporter of innovation. He also raised concerns about regulatory frameworks in China and the European Union, which could undermine United States efforts to commercialize SEPs. One of the sub-topics of the hearing was a proposal for a separate SEP tribunal in the United States to make it a more competitive forum for hearing SEP cases, which was raised in the hearing and in discussions after the formal hearing was over.
Subcommittee on Courts, Intellectual Property, and the Internet (Committee on the Judiciary)
By Mark Cohen （柯恒） on 2025/01/02
On December 18, 2024, I was honored to testify before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet. These hearings were on “IP and Strategic Competition with China.” This hearing was concerned with “Patents, Standards, and Lawfare.” I was joined by the Hon. Walter Copan, former Commerce Under Secretary in charge of NIST, Kent Baker, Esq., from Ublox, and Prof. Tom Cotter from the University of Minnesota Law School. Our written and oral testimony can be found here.
Perhaps it was the spirit of the season, the consensus on the Hill regarding China, or the higher level of bipartisanship found on IP issues - but this hearing showed remarkable bipartisanship and collegiality.
In my testimony, I pointed out that SEPs present unique challenges to China. Although patents are private rights, standards are intended to advance public goals. China’s subsidization of patent filings and participation in standards-setting bodies further align SEP litigation with the interests of the State. I also discussed my research involving the diverse translations of “FRAND” into Chinese.
I expressed concern about the potential erosion of national and most favored national treatment if we continue to treat China or Chinese companies differently from other countries. The first recourse in expressing our concerns over SEP litigation with China should be to negotiate and, if necessary, exploit multilateral mechanisms such as WTO dispute resolution procedures. Prof. Cotter wisely added that any retaliation brought by the United States for perceived unfair practices would likely elicit counterretaliation by China.
Prof. Cotter also pointed out that the United States has long utilized many tools we are currently complaining about, such as anti-suit injunctions (ASIs). While this is generally true, I also believe that China’s implementation of these practices is often markedly different from that of the United States. In the past several years, I have written about several “false friends” involving transplanted IPR activities undertaken in China compared to the United States. These transplants include anti-suit injunctions, administrative enforcement of IP rights, and even disciplinary action by local bar authorities against unethical IP lawyers.
At the time of the hearing, China’s ardor for ASIs seemed to have chilled since the EU filed a WTO dispute regarding China’s ASI practices. This informal suspension of ASIs may be coming to an end in light of the Supreme People’s Court issuing its first anti-ASI on behalf of Huawei against Netgear at the Unified Patent Court’s Local Division and the Munich 1 Regional Court, which was announced on December 24, 2024.
Kent Baker also pointed out the difficulties of determining essentiality in SEPs and the costs of participating in standards committees as an SME. Walter Copan underscored the role of the United States as a major exporter of innovation. He also raised concerns about regulatory frameworks in China and the European Union, which could undermine United States efforts to commercialize SEPs. One of the sub-topics of the hearing was a proposal for a separate SEP tribunal in the United States to make it a more competitive forum for hearing SEP cases, which was raised in the hearing and in discussions after the formal hearing was over.
I had previously been honored to testify at the first hearing in this series on March 8, 2023. At that time, I focused on how the United States could become more efficient and competitive with China’s IP system. Jamieson Greer, President Trump’s nominee to be the next U.S. Trade Representative, also testified then. The record of the first hearing is available here.
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