Legal systems surrounding cross-border tech transfer

Even though mainland China’s economy is weakening, high-tech exports are reportedly riding a wave of expansion. Compared with traditional tangible goods, technology import and export transactions are playing an increasingly important role in relevant international trade for China.

The technology import and export system. The major PRC laws governing cross-border technology transfers include the Foreign Trade Law, the Administrative Regulations for the Import and Export of Technology, the Administrative Measures for the Registration of Technology Import and Export Contracts, and the Administrative Measures for Technologies the Import of Which is Prohibited or Restricted. Pursuant to the laws, “an act of transferring technology into the PRC, or out form the PRC, by way of trade, investment or economic and technological co-operation, is the import or export of technology”; technology transfer includes “transfer of patents, transfer of patent filing rights, patent licensing, transfer of technical secrets, technical services, and other means”.

In practice, software licence contracts, trademark licences and transfer contracts with elements of patent or proprietary technology licensing, co-operative design contracts, co-operative research contracts, co-operative development contracts, co-operative production contracts and other such contracts including an element of cross-border transfer of technology, all fall within the scope of those subject to laws relating to the import and export of technology, whereas pure trademark licence agreements, general work copyright licences and transfer agreements fall outside of this scope.

Lu Lei is a partner and Han Yufeng is an IP consultant with Run Ming Law Office