bor and environmental protections.”
The TPP IP innovations
In general, the IPR-related TPP clauses are based on existing international IPR standards such as TRIPS (WTO agreement on Trade-Related Aspects of Intellectual Property Rights), WIPO and PCT. However, the US negotiators in particular were seeking to significantlystrengthen and broaden the protection for patents, trademarks, copyrights and trade secrets – including rights on digital media and pharmaceutical products. While not all of the US provisions were accepted, former World Bank Director of Economic Policy and Debt Carlos Braga provides an excellent summary of the noteworthy measures that did make it into the agreement:
- Extended trademark terms of protection
- A minimum copyright term of protection of at least 70 years (TRIPS’ minimum standard is 50 years)
- Stronger copyright enforcement, including the possibility of criminal prosecution and the requirement that TPP countries be signatories of WIPO Internet treaties
- Requirement to put in place enforceable legal means for the protection of trade secrets
- Protection of test data submitted for marketing approvals (at least 10 years for agricultural chemicals and 5 to 8 years for pharmaceuticals)
- Explicit protections for new pharmaceutical products that are or contain a biologic (the TPP is the first trade agreement to do this)
The test data exclusivity debate
As noted above, TPP granted 5 to 8 years of test data protection for pharmaceutical products. This clause was one of the most hotly contested issues during the TPP negotiations and, when publicized, aroused tremendous criticism from both the US pharma industry and from medical rights activists.
The US grants 12 years of test data exclusivity to pharmaceutical products and the US negotiators wanted the TPP negotiating partners to align themselves with this policy. In Atlanta, however, they had to compromise on the shorter term or the agreement would not have been finalized.
BIO President and CEO Jim Greenwood spoke for the industry when he stated “… we believe the failure of our Asian-Pacific partners to agree to a similar length of protection [as the US] is remarkably short-sighted and has the potential to chill global investment and slow development of new breakthrough treatments for suffering patients.”
On the other hand, organizations such as Doctors without Borders (MSF) and Public Citizen were disappointed that exclusivity was set at as high as 8 years and not clearly limited to 5. According to the MSF “The big losers in the TPP are patients and treatment providers in developing countries… [T]he TPP will…go down in history as the worst trade agreement for access to medicines in developing countries, which will be forced to change their laws to incorporate abusive intellectual property protections for pharmaceutical companies.”
Are individual and public interest rights being trampled?
Among the first to object to the TPP IPR measures when they were finally made public were the freedom of information and freedom of the Internet advocacy groups. According to the Electronic Frontier Foundation, the digital IPR policies outlined in the TPP benefit the big corporations at the expense of the public, with extensive negative impact on freedom of expression, right to privacy and due process.
Another such advocacy group, Fight for the Future, released a statement that the TPP’s extended copyright protection would “keep an enormous amount of information, art, and creativity out of the public domain for decades longer than necessary, and allow for governments to abuse copyright laws to censor online content at will, since so much of it will be copyrighted for so long.”
Unfair strengthening of pharma patent rights?
Other critics expressed concern that the TPP clauses that strengthened patent rights could stifle innovation in general and have a negative effect in the pharma industry in particular. IP Watch, for example, points out the following:
- Criteria – Patents can be granted for new uses of a known product, new methods of using a known product or new pr