TREATIES AND OTHER INTERNATIONAL ACTS SERIES 18-922

SCIENTIFIC AND TECHNOLOGICAL COOPERATION

Protocol Between the

UNITED STATES OF AMERICA

and CHINA

Amending and Extending the Agreement of January 31, 1979, as Amended and Extended

Signed at Beijing September 17 and 22, 2018

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966 (80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued under the authority of the Secretary of State shall be competent evidence . . . of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and international agreements other than treaties, as the case may be, therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof.”

CHINA

Scientific and Technological Cooperation

Protocol amending and extending the agreement of January 31, 1979, as amended and extended.

Signed at Beijing September 17 and 22, 2018;

Entered into force September 22, 2018; With effect from August 27, 2018.

PROTOCOL AMENDING AND EXTENDING THE AGREEMENT BETWEEN

THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND

THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA ON COOPERATION IN SCIENCE AND TECHNOLOGY

The Government of the United States of America and the Government of the People's Republic of China,

Recognizing that the Agreement Between the Government of the United States of America and the Government of the People's Republic of China on Cooperation in Science and Technology signed at Washington on January 31, 1979, as am.ended. and extended (hereinafter referred to as ''the Agreement"), terminated on August 26, 2018, and,

Acting pursuant to paragraph 1 ofArticle 11 of the Agreement;

Have agreed as follows:

Article I

Annex I of the Agreement shall be amended to read:

ANNEX I - INTELLECTUAL PROPERTY

I. General Obligation

The Parties shall ensure adequate and effective protection of intellectual property created or furnished under this Agreement and relevant implementing arrangements*. Rights to such intellectual property shall be allocated as provided in this Annex.

[*Footnote]: For greater clarity, the 2009 "Protocol between the Department of Energy of the United States of America and the Ministry of Science and Technology and the National Energy Administration of the People's Republic of China for Cooperation on a Clean Energy Research Center," including Annex IIntellectual Property thereto (the "CERC Protocol"), is an implementing arrangement subject to this Agreement The CERC Protocol as an implementing arrangement is in effect concurrently with this Agreement. ,,

II. Scope

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A. This Annex is applicable to all cooperative activities undertaken pursuant to this Agreement, except as otherwise specifically agreed by the Parties or their designees. Nothing in this Annex is intended to govern cooperative or other activities by the Parties, or any other entities, that are not undertaken pursuant to this Agreement.

B. For purposes of this Agreement, "intellectual property" shall mean the subject matter listed in Article 2 of the Convention Establishing the World Intellectual Property Organization, done at Stockholm, July 14, 1967 and may include other subject matter as agreed by the Parties.

C. Each Party shall ensure, through contracts or other legal means with its own participants, if necessary, that the other Party and its participants can obtain the rights to intellectual property allocated in accordance with this Annex. To promote greater certainty regarding this commitment, the Parties shall ensure that the allocation of intellectual property rights occurs according to this Annex as may be further elaborated in the agreements between the participants of each Party according to this Annex. If the science and technology cooperation, including research cooperation, carried out under the Agreement generates intellectual property, including those involving projects with potential technology trade, measures of either Party governing inbound technology licensing transactions shall not impede the Parties and the participants of the project of both sides from obtaining the allocation of rights set out in this Annex. 1bis Annex does not otherwise alter or prejudice the allocation between a Party and its participants, which shall be determined by that Party's laws and practices.

D. Except as otherwise provided in this Agreement, disputes concerning intellectual property arising under this Agreement shall be resolved through discussions between the concerned participating institutions, or, if necessary, the Parties or their designees. Upon mutual agreement of the Parties, a dispute shall be submitted to an arbitral tribunal for binding arbitration in accordance with the applicable rules of international law. Unless the Parties or their designees agree otherwise in writing, the arbitration rules ofUNCITRAL shall govern.

E. Termination or expiration of this Agreement shall not affect rights or obligations under this Annex.

m. Allocation of Rights

A. Each Party shall be entitled to a worldwide, non-exclusive, irrevocable, royalty-free license to translate, reproduce, and publicly distribute monographs, scientific and technical journal articles, reports, and books directly arising from cooperation under this Agreement. All publicly distributed copies of a copyrighted work prepared under this Agreement shall indicate. the names of the authors of the work unless an author explicitly declines to be named.

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B. Rights to all forms of intellectual property, other than those rights descnoed in paragraph ill.A above, shall be allocated as follows:

(1) Prior to participation in cooperative activities under this Agreement by a visiting researcher, the host Party or its designee and the Party or its designee employing or sponsoring the visiting researcher may discuss and determine the allocation of rights to any intellectual property created by the visiting researcher. The Parties further warrant and shall ensure that any such determinations as to the allocation of rights to any intellectual property are not inconsistent with any measure, including present or future measures addressing inventor remuneration for service inventions. Absent such a determination, visiting researchers shall receive rights, awards, bonuses and royalties in accordance with the policies of the host institution. For purposes of this Agreement, a visiting researcher is a researcher visiting an institution of the other Party (host institution) and engaged in work planned solely by the host institution.

(2) (a) Any_intellectual property created by persons employed or sponsored by one Party under cooperative activities other than those covered by Paragraph ill.(B)(l) shall be owned by that Party. Intellectual property created by persons employed or sponsored by both Parties shall be jointly owned by the Parties. In addition, each creator shall be entitled to awards, bonuses and royalties in accordance with the policies of the institution employing or sponsoring that creator.

(b) Unless otherwise agreed in an implementing or other arrangement, each Party shall have within its territory a right to exploit and allow others to exploit intellectual property created in the course of the cooperative activities.

(c) The rights of a Party outside its territory shall be determined by mutual agreement considering, for example, the relative contributions of the Parties and their participants to the cooperative activities, the degree of commitment in obtaining legal protection and licensing of the intellectual property and such other factors deemed appropriate. ·

(d) Notwithstanding paragraphs III.B(2)(a) and (b) above, if either Party believes that a particular project is likely to lead to or has led to the creation of intellectual property not protected by the laws of the other Party, the Parties shall immediately hold discussions to determine the allocation of rights to the intellectual property. If an agreement cannot be reached within three months of the date of the initiation of the discussions, cooperation on the project in question shall be terminated at the request of either Party. Creators of intellectual property shall nonetheless be entitled to awards, bonuses and royalties as provided in paragraph ill.B(2)(a).

(e) For each invention made under any cooperative activity, the Party employing or sponsoring the inventor(s) shall disclose the invention promptly to the other Party together with any documentation and information necessary to enable the

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other Party to establish any rights to which it may be entitled. Either Party may ask the other Party in writing to delay publication or public disclosure of such documentation .or information for the purpose of protecting its rights in the invention. Unless otherwise agreed in writing, the delay shall not exceed a period of six months from the date of disclosure by the inventing Party to the other Party.

IV. Business Confidential Information In the event that information identified in a timely fashion as businessconfidential is furnished or created under this Agreement, each Party and its participants shall protect such information in accordance with applicable laws, regulations, and administrative practices. Information may be identified as "business-confidential" if a person having the information may derive an economic benefit from it or may obtain a competitive advantage over those who do not have it, and the information is not generally known or publicly available from other sources, and the owner has not previously made the information available without imposing in a timely manner an obligation to keep it confidential.

Article II

The Agreement shall be extended for five years, effective from August 27, 2018. In doing so, the implementing accord and protocols that are coterminous with the Agreement also shall be extended for five years.

Article ID

This Protocol shall enter into force on the date of the last signature.

DONE, in duplicate, in the English and Chinese languages, each text be:ing equally authentic.

FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF THE UNITED STATES OF THE PEOPLE'S REPUBLIC OF AMERICA:. CHINA:

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