The Trans-Pacific Partnership and Intellectual Property Rights
by Evan Zhao
The Trans-Pacific Partnership (TPP) aims to integrate economies across the Asia-Pacific region and serve as a template for future regional trade agreements. The TPP has expanded from its four original signatories (Brunei, Chile, Singapore, and New Zealand) to include the United States, Australia, Peru, Vietnam, and Malaysia, and, as of June 2012, Mexico and Canada. The most recent round of negotiations (Round 14) took place September 6-15, 2012, in Leesburg, Virginia.
Although TPP negotiations have been active for some time, they are shrouded in secrecy. TPP parties have no obligation to release their positions to the public. U.S. officials have indicated, however, that a congressional review and public comment period will follow the completion of talks. In the meantime, a leaked draft of the U.S. position has unveiled aggressive intellectual property (IP) provisions that implement IP measures far more restrictive than what international law currently requires.
The leaked draft of the U.S. position includes three key provisions. First, Article 8-1 allows the patenting of a “new form, use, or method of using a known product . . . even if such invention does not result in the enhancement of the known efficacy of that product.” This process, known as evergreening, allows companies to extend patents by making minor modifications to old drugs, hindering the entry of generic medicines. Second, Article 8-7 prevents parties from filing pre-grant oppositions to patents, a flexibility rooted in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) that can accelerate the entry of generic medicines. Finally, Article 14-1 expands a TRIPS provision allowing customs officials to seize counterfeit trademark or pirated goods by adding “confusingly similar” goods to the list, which creates a more lenient standard. These key provisions implementing stricter patent regulations could have the effect of severely restricting access to affordable life-saving medicines. Since the adoption of TRIPS, the balance between public health interests and patent protection has remained contentious. Legal flexibilities in patent law are recognized as important public policy tools for promoting public health interests and have been used by developed countries, including the United States, to protect such interests. However, in the last decade, developed countries have felt increasing pressure from pharmaceutical industry lobbyists to strengthen regulations.
As a result, the office of the United States Trade Representative (USTR) has taken a hard stance on the matter. Additionally, groups such as Médecins Sans Frontières (MSF)—a.k.a. Doctors Without Borders—an international medical humanitarian organization, have claimed that the USTR is “promoting restrictive trade policies that would make it much harder for patients, governments, and treatment providers like MSF to access price-lowering generic drugs.” These provisions, which keep generic manufacturers out of the market by creating longer patent and data monopoly protections for multinational pharmaceutical companies, could severely restrict access to affordable, life-saving medicines for millions of people. Such competition reduced the price of HIV medicines by more than 99%, from $10,000 per person per year in 2000 to $60 per person per year in 2011.
For a more detailed analysis of the issue, MSF has released an Issue Brief. Round 15, the next round of negotiations, will take place in Auckland, New Zealand on December 3-12, 2012. Japan is also expected to the join the negotiations at some point in the future.
Suggested Citation: Evan Zhao, The Trans-Pacific Partnership and Intellectual Property Rights, Geo. J. Int’l L. Online: The Summit (Dec. 17, 2012, 10:54PM), http://gjilsummit.blogspot.com/2012/10/update-trans-pacific-partnership.html.
