Intellectual Property Implications of The Trans Pacific Partnership Agreement (TPPA) – Guest Post by Manik Mehta

The final session of the highly secretive Trans Pacific Partnership Agreement (TPPA) Ministerial meeting taking place between many of the largest Pacific Rim countries, including the United States, Japan, Australia, Chile, and many others is currently underway in Maui, Hawaii. As a result citizens of some of these nations are finding elaborate means of protesting the meeting. One demonstration even broke a world record for the most conch shells blown at one time to raise awareness against what they believe is a trade deal that favors corporate interests. Some of the unrest comes from the fact that the terms of this deal, and all negotiations are being discussed secretly until the final draft is ready. This is critical since the restrictions, and laws it will impose will rule roughly 40% of the World’s economy, so there is a lot of curiosity about what these new guidelines might be.

From the US perspective the main focus of the TPPA is to ensure free trade, boost exports of American goods, create more jobs and benefit the economy. As stated by President Obama the TPP’s main agenda is “dedicated to expanding economic opportunity for American workers, farmers, ranchers and businesses”.

The Trans Pacific Partnership Agreement is mainly targeting developments in the agricultural industry, the pharmaceutical industry, and to promote free-trade conditions within the signing counties. In addition to these top-level impacts there is also a well thought out Intellectual Property chapter, which aims to standardize Trademarks, Copyrights, Patents and the enforcement of such throughout the TPPA partner countries.

On October 16th 2014, Wikileaks published an updated version of the TPPA Intellectual Property Rights Chapter. Many of the suggested additions made in the TPPA on top of the previously existing trade agreements became a huge source of controversy. The latest provisions may be exactly the same, or they may not be used at all in the final agreement, but let’s further discuss some of the key insights from the leaked IP chapter:

On Copyrights and Related Rights:

In Article 4: Copyrights and Related Rights – the new copyrights terms shall be “Not less that the life of the author and 70 years after the author’s death”, granting extended terms on their creations. Currently all works of authors, artists, writers and designers are allowed to keep their work for 50 years.

The copyright term extension benefits the home of entertainment firms, the US. “The US is a net exporter of creative content,” noted Anissa Brennan, vice president of international affairs and trade policy for the Motion Picture Association of America (MPAA), an industry-lobbying group. The six affected TPP nations, which are net importers of creative content, are not likely to fare as well. These nations’ consumers are likely to wind up paying millions of dollars in additional royalties, mostly to US firms.

On Trademarks and GIs:

The scope of what a Trademark includes will be changed if the leaked version of the TPPA is enacted. The TPPA plans to change the definition of a Trademark as stated in The Lanham Act from the requirement that “as a condition of registration, that signs be visually perceptible.” to a leniency in that condition.  The TPPA defines that “No Party may require, as a condition of registration, that a sign be visually perceptible, nor may a Party deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound or a scent.” There is also a separate provision for Well-Known Marks and Geographical Indications. Well-Known Marks with the new TPPA definition would not have any need to be (a.) registered as a trademark, (b.) included on a list of well-known marks or have (c.) prior recognition of the mark as well-known. Under the proposed agreement suddenly something like ‘Idaho Potatoes’ with the new Geographical Indication (GI) provisions would be allowed. The GI provision also states, “Geographical indications are eligible for protection as trademarks.” which changes the current independent status of GIs.

Patents and patentability:

Perhaps the most controversial changes with the largest implications for the laws impacting patentability are going to be the pharmaceutical industries, including their consumers, and patients. Let me start with the new TPPA definition on what assignees would be able to patent, “patents shall be available for any new forms, uses, or methods of using a known product; and [these] may satisfy the criteria for patentability, even if such invention does not result in the enhancement of the known efficacy of the product.”  The obvious addition to the traditional definition of patentability for some of the affected countries is the fact that you may be able to patent new uses, and forms of known products which may not make something more efficient. The current criteria for patentability provides no such details, it simply states, “that [the invention] [is] new, involve[s] an inventive step and [is] capable of industrial application.”

The rational for making the suggested changes is that it would be a huge step towards making worldwide IP laws more practical, and to establish a global standard. The new definition would provide pharmaceutical companies an assurance that they will see a return on their investment for the research they conduct. Advancement in medical technology requires a lot of funding, and to ensure the continued interest of the companies in innovation, standardizing strong IP protection is an important step. The rational for this relates back to the case of Novartis Vs. Union of India & Others. In this case Novartis was denied a patent for their cancer drug Gleevec on the basis that Novartis did not present evidence of a difference in therapeutic efficacy between the final form of Gleevec and the raw form of Imatinib. The Supreme Court of India felt that granting Novartis a patent for Gleevec would put affordable cancer care away from poor people, and disregarded the economic impact it would have on Novartis’s research in that country.  Pharmaceutical companies benefit from knowing that their research, innovation and investments are not vulnerable to potentially political, or arbitrary decisions. The TPPA offers to unionize the intellectual property law in the involved countries to promote investments, and a common standard.

The cost of Pharmaceuticals would increase a little but the benefits that the TPPA will bring are likely worth more. As the Prime Minister of New Zealand states, “any cost increase would be “tiny” compared with the economic benefits of having a free trade agreement with the US, and other big economies. We will receive so much more tax revenue … it’s highly likely we will subsidize even more drugs than we do today”.

Conclusions

We can only speculate what The TPPA will do to the global economy when it is finalized, but one thing is certain, as stated in a Forbes post by Mark Hendrickson, “The more numerous the participants and geographically diverse the division of labor, the more products and skills we can access, the more competition there will be to improve quality and lower prices, and the more we will profit from increased specialization, comparative advantages, and economies of scale.” The TPPA is controversial, and will likely continue to drive protest around the world, but more global standardization around IP laws will likely pay significant economic benefit by removing uncertainty around IP value within different jurisdictions.

Works Cited:


Mehta_HeadshotManik is currently a senior studying Applied Physics at The Ohio State University.  He is interested in pursuing a career in patent law, and is currently spending the summer as an intern for Patinformatics, LLC.

The desire to positively impact the world through innovation, and insure a better future for humans is what drives him.

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