At the November 2017 Asia Pacific Economic Cooperation Summit in Da Nang, Vietnam, the 11 countries remaining in the Trans-Pacific Partnership (“TPP”) took a significant step forward to finalize a new agreement now referred to as the Comprehensive and Progressive Trans-Pacific Partnership (“CPTPP“).
In the absence of a key player – the United States – this new cross-border deal, the CPTPP is reported to have largely incorporated the TPP on the one hand but “suspended” certain intellectual property provisions on the other hand, in hopes of reviving them when the United States re-joins the agreement at some point in the future. Thus, although the final text has not been published, it is highly likely that the CPTPP has ceased the effect of many IP-related and/or drug-specific articles that the United States rigorously promoted when the TPP was being negotiated. In light of the above, we think that the following important issues in Chapter 18 of the TPP, which concerns intellectual property, may have been included in the list of suspended provisions of the CPTPP.
1. Scope of Patentable Inventions
Article 18.37 of the TPP required its member countries to extend patent protection to “new uses of a known product, new methods of using a known product, or new processes of using a known product.” Reportedly, this is one the points that United States focused on during the TPP negotiation to facilitate protection of drugs invented by US pharmaceutical corporations. However, various countries, mostly developing ones, have been strongly opposed to this approach.
2. Copyright and Patent Term Adjustment
The TPP increased the duration of copyright protection to the life of the author plus 70 years, which is 20 more years than the Berne Convention (Article 18.63). Further, the TPP required the signatories to adjust the term of a patent to compensate for delays in the process of patent application (Article 18.46). For drug patents, the TPP also mandated members to adjust the term of a patent to compensate for unreasonable curtailment of the effective patent term as a result of the marketing approval process (Article 18.48). When negotiating the TPP, the United States is said to have actively called for a longer duration of copyright protection and new statutory reforms that would effectively create longer patent terms and constrain the entry of generic drugs into TPP markets.
3. Undisclosed Test or Other Data
Similar to Article 39.3 of the TRIPS Agreement, TPP members must protect undisclosed test or other data that authorities obtain as a condition for granting marketing approval for a new drug. However, while TRIPS only generally requires members to protect this against “unfair commercial use,” the TPP goes one step further to specifically mandate members to forbid third parties from marketing the same or a similar product for at least five years from the date of marketing approval of the drug (Article 18.50).
4. Legal Remedies and Safe Harbors
One measure that United States adopted to enforce copyrights in the network environment is the Digital Millennium Copyright Act (“DMCA”), which vigorously deals with Internet Service Providers by providing certain safe harbors and appropriate sanctions. The United States, therefore, actively imposed similar DMCA standards into the TPP as displayed in Article 18.82. However, a rigid application of these standards in developing countries was said to be impractical and ineffective. Hence, it would not be surprising if this provision is to be suspended when the CPTPP comes into effect.