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Criminal procedure is one of the three major points in the China‐Intellectual Property(IP) case brought about by the United States. A number of experts believed that United States failed on this point because of lack of sufficient evidence. However, the author is of the view that the Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS) text‐based interpretation of IP enforcement flexibility served as the core of the panel decision. This article starts with the criminal thresholds of China's criminal laws, and focuses on analysing the interpretation by the panel on the scope of responsibility and its limitations as enshrined in article 61, which led to the conclusion that the essence of the dispute is how to interpret and determine “IP enforcement flexibility”. On this basis, the article expounds the concept and content of the “IP enforcement flexibility” and highlights the implications of this concept on current international TRIPS‐plus initiatives. Some implications are given on how the World Trade Organization members can take advantage of the enforcement flexibility to serve the needs of innovation and development in their own countries.
