In April, President Trump indicated that his administration would reconsider the US re-joining the Trans-Pacific Partnership (TPP), after withdrawing from it last year.

Following the United States’ withdrawal from the treaty, the remaining 11 signatory states, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam nevertheless proceeded to negotiate a new trade agreement which is now finalised and referred to as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

Amongst the various terms of the TPP, the provisions concerning intellectual property (IP) were some of the most heavily negotiated terms. Such IP provisions had been heavily pursued, mainly by the United States, as enhanced protection over IP would benefit more developed and innovative economies such as the United States.

Concerns were raised in particular that such provisions would make generic medicines less available which could have serious impact on healthcare industries in developing economies. However, the provisions had been accepted in the original TPP in exchange for easier access to United States market.

With the US out of the picture, the CPTPP was largely the same as the original TPP, but with 22 provisions being “suspended” – rather than removed. The suspension was wisely put into effect to allow the US to easily re-enter the partnership should it change its mind at a later date, as may soon be the case, and may be lifted upon the parties’ agreement.

Amongst the suspended provisions, the following relate to IP:

  • patentable subject matter: The TPP required all member nations to include “new uses of a known product, new methods of using a known product, or new processes of using a known product” within the scope of patentable subject matter.
  • unreasonable authority delays and curtailment in patent applications: The TPP would have allowed patent applicants to request adjustment of patent term if (1) a patent takes more than five years to issue from the filing date or (2) patent examination continues beyond three years from the date of filing the request for examination, whichever is longer. Additionally, the TPP proposed that members implement a procedure for accelerated examination.
  • unreasonable authority delays and curtailment in patent applications: The TPP would have allowed patent applicants to request adjustment of patent term if (1) a patent takes more than five years to issue from the filing date or (2) patent examination continues beyond three years from the date of filing the request for examination, whichever is longer. Additionally, the TPP proposed that members implement a procedure for accelerated examination.
  • protection of undisclosed test or data: The TPP provided that third parties would not be permitted to rely on undisclosed test data submitted in connection with a request for marketing approval for a period of at least five years from the date of such approval.
  • biologics The TPP set forth a market exclusivity period for biologics of either eight years or five years of exclusivity and “other measures” to deliver a comparable outcome in the market.
  • increase of duration of copyright protection: The TPP required that the term of protection for copyright be extended to a term of not less than life of the author plus 70 years for works created by natural persons and to a term of not less than 70 years from the year of first authorized publication for works created by corporations
  • request for civil and criminal liability for circumventing Technological Protection Measures (TPMs) and Rights Management Information (RMI)
  • protection of encrypted program carrying satellite and cable signals
  • legal remedies against internet services providers and provision of safe harbours

If the United States indeed reopens negotiations, we would expect that it will demand that the suspension be lifted.