ated “… 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 processes of using a known product – a policy that would considerably extend the monopoly of patents that would otherwise expire. In the pharma industry this kind of patent “evergreening” could delay the introduction of less expensive generic drugs.
- Term extension – Delays of more than five years in issuing patents (or granting marketing approval of a drug) will extend the patent term. Critics are concerned that this stipulation could encourage “bad behavior” on the part of pharma companies, giving them an excuse to delay the launch of products in low-priced markets while rewarding them with extended monopoly status.
- Licenses – Governments would be restricted in their right to enact the compulsory licenses that have been used in the past to negotiate medicine prices to the benefit of enhanced public healthcare.
The TPP strengthened the US IPR agenda
The TPP was clearly an opportunity for the US government to pursue its IPR objectives, for better or, as the critics claim, for worse. In Canada, for example, intellectual property law professor Michael Geist was quick to point out that “Those who set the [IPR] rules … put themselves at a competitive advantage and in this instance it’s quite clearly the United States.”
It appears, therefore, that pulling out of the TPP is a missed opportunity for the US to pursue its IPR agenda in the Pacific Rim economies. It will be interesting to see how the IPR issues play out in the bilateral agreements that President-Elect Trump’s administration intends to pursue in place of the TPP.