The CPTPP places IP in the “too hard basket”
Published on 10 Dec, 2017
The “CPTPP”, otherwise known as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership is what remains of the “TPPA-11” (which was itself, what remained of the Trans-Pacific Partnership (“TPP”) Free Trade Agreement following the withdrawal of the United States). Last month, in Vietnam, the eleven remaining signatories resolved to push forward toward an agreement – but to suspend certain “polarising” clauses within the current draft. The most notable suspended provisions relate to IP.
Brief history of the TPP
Following more than 25 rounds of negotiations spanning over a decade, the text of the TPP was finally agreed on 5 October 2015. Involving 12 countries and affecting up to 40% of the world’s population, the TPP stood to be the largest free trade agreement in history.
However, the TPP was never ratified. Rather, it suffered by way of unfortunate timing. During the 2016 United States Presidential election campaign, the Republican Party nominee Donald Trump vowed to withdraw the US from the TPP if elected; his position was that the agreement would undermine the US economy and its independence. True to his word, President Trump then formally withdrew the US from the TPP on 23 January 2017.
And then there were eleven: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. The so-called “TPPA-11” essentially then had four options: pull stumps on the entire agreement, start over, ratify the previous agreement (and proceed without the US), or to proceed largely on the basis of the agreed text sans certain clauses that may not have been included were it not for US insistence.
Proceed without the United States, but suspend certain (IP-based) provisions
At November’s APEC Summit in Da Nang, Vietnam, trade ministers of the TPPA-11 announced a commitment to forging ahead with the CPTPP, but to suspend a number of “polarising” provisions from the previously-agreed TPP text; many such provisions relate to IP.
As it happens, many of the now-suspended IP provisions were included only upon US insistence. With the US now out of the picture, there was no real barrier to suspending such provisions other than foregoing a “carrot” that may, in the future, have lured the US back into the TPP fold. That said, the provisions stand to be suspended, not deleted altogether – and as such, should the US wish to re-enter the TPP following a change in administration or direction, the framework remains.
Which IP provisions have been suspended?
- Patentable subject matter – Article 18.37.2 and 18.37.4 (second sentence): patents may be granted on new uses of known products or inventions derived from plants.
- Patent term adjustment for unreasonable granting authority delays – Article 18.46: this was to apply to patents granted more than five years after filing or three years after examination.
- Patent term adjustment for unreasonable curtailment – Article 18.48: this allowed for adjustment of the patent term due to delays incurred during marketing approval – for example, in respect of pharmaceuticals.
- Protection of undisclosed test or other data – Articles 18.50 and 18.51: this provision facilitated data protection in respect of information on pharmaceuticals or biologics submitted as a requirement for marketing approval. At least a five year exclusive marketing period (for the same or similar products) was to be provided
Other suspended IP provisions
- Term of protection for copyright and related rights – Article 18.63
- Technological protection measures (TPMs) – Article 18.68
- Rights management information (RMI) – Article 18.69
- Protection of encrypted program-carrying satellite and cable signals – Article 18.79
- Legal remedies and safe harbours – Article 18.82 and Annexes 18-E and 18-F
- Conservation and trade (measures “to combat” trade) – Article 20.17.5 – suspend “or another applicable law” and footnote 26
- Transparency and procedural fairness for pharmaceutical products and medical devices – suspend Annex 26A – Article 3 on procedural fairness
What does this mean for Australian IPR holders, really?
In short, not much. As it happens, Australia’s IP laws were already largely TPP-compliant prior to the original agreement being made on 5 October 2015. There were two principal reasons for such compliance: firstly, the influence of the US upon negotiations toward the TPP; and secondly, the fact that Australia had only recently (May 2004) signed a bilateral free trade agreement with the US, at which time Australian IP laws were brought into line with the standard the US expects of its trading partners.
As such, a relaxing (or suspension) of certain standards with which Australian laws are already largely compliant is unlikely to have any discernible effect on the strength of IP rights granted in Australia. For Australians seeking IP protection abroad, however, the “patent bargain” may be a slightly different proposition.
Opening the gate to abolish Patent Term Extension in Australia?
Perhaps it’s more coincidence than conspiracy, but Australia’s Productivity Commission has previously recommended that Patent Term Extension (PTE) in Australia be abolished. Although the Government responded in the negative, it is perhaps worth considering how much of an influence the ongoing TPPA-11 (and then the CPTPP) negotiations had upon the Government’s stance. In theory, now, there is nothing to stop the Government abolishing PTE should it wish to do so (aside, of course, from the many and varied economic arguments in support of such a scheme).
Where to now?
Essentially, the CPTPP is now where the TPP was, circa 2014. Each country now needs to pursue its own domestic processes, including public consultation, in advance of signing the agreement. From there, we would return to where the TPP was in October 2015: the provisions of the CPTPP would need to be ratified by each country that is signatory to the eventual agreement.
Watch this space, although not too intently. We may still be 18-24 months away from the agreement taking effect.
Patent-wise, what does the CPTPP mean for Australia and New Zealand?
Increased trade, as would expectably occur under the CPTPP, brings with it increased incentives for foreign patent applicants to file in their destination markets such as Australia and New Zealand. In this respect, the eventual ratification of the CPTPP throughout the eleven remaining signatories likely amounts to a substantial positive for the region.
All things considered – and purely in respect of IP, the CPTPP is arguably a good thing as far as Australia and New Zealand are concerned. Anything that provides foreigners with an increased incentive to file within this region has to be viewed as a positive (so long as it is not necessary to cede too much ground in return). On the other hand, if the CPTPP does not end up being ratified, we don’t necessarily lose anything – it’s simply a case of status quo.
Shelston IP has been following the TPP (and now CPTPP) negotiations for the best part of a decade. We will continue to keep readers apprised of developments as they relate to IP.