1. What is TPP Intellectual Property?
2. TPP: The New Gold Standard for Intellectual Property Protection in Trade Agreements?
3. Trans-Pacific Partnership Agreement
4. President Trump Says the TPP is Dead, So What's Next for IP?
5. First, We Have the 5Ws of the TPP
6. The TPP IP Innovations
7. The Debate on Test Data Exclusivity

What is TPP Intellectual Property?

TPP intellectual property is a type of intellectual property that is protected by the Trans-Pacific Partnership (TPP). The focus of the TPP is on eliminating behind-the-border restrictions on commerce and helping member countries better understand regulation. In addition, the TPP is meant to be the gold standard for preferred commerce agreements between countries. 

The TPP faces a variety of obstacles before it can be fully implemented. For instance, the agreement must be ratified by every member country, and currently, the only country to do so is Malaysia, which only agreed to the terms of the TPP after five years of negotiation. In the United States, the TPP faces stiff opposition from the general public who are increasingly wary about the potential drawbacks of sweeping commerce agreements. In the recent U.S. presidential election, both candidates expressed reservations about the TPP. 

Congress failed to hold hearings related to the TPP during the 2016 presidential campaign. Also, because supporters and opponents of the agreement provide conflicting information about the economic effects of the TPP, many people are unsure whether this commerce agreement will help or harm member nations. However, there is some evidence that the TPP will improve the financial welfare of many countries. In particular, the TPP includes a variety of progressive reforms for protecting intellectual property rights (IPRs)

There has long been a link between international commerce agreements and intellectual property rights. Intellectual property rights are territorial in nature, meaning these rights are enforced on a country by country basis. There have been attempts to unify and coordinate IPRs between countries going as far back as the 19th century. 

In the period following World War II, global commerce, including intellectual property rights, expanded massively. Naturally, these led to conflicts between innovators in different countries seeking to secure their IP rights, with imitation and theft being extremely common. Starting in the 1970s, the United States government urged the adoption of anti-counterfeiting codes, particularly in GATT negotiations. 

The biggest supporters of multilateral commerce agreements have traditionally been trademark holding firms, who are focused on limiting the amount of counterfeited merchandise bought and sold across the globe. One of the first efforts to negotiate a worldwide commerce agreement was the Tokyo Round of Negotiations, which took place between 1973 and 1979. While these negotiations ultimately failed, they helped provide a pathway for nations focused on innovation to protect intellectual property rights. 

In 1986, an eighth-round of negotiations known as the Uruguay round was focused on combating counterfeiting by adopting minimal safety requirements and improving IPR enforcement throughout the world. The benefit of these negotiations was that they tied the strengthening of intellectual property rights to the economic goals of member nations, incentivizing protection of these rights. In addition, the Uruguay Round included a mechanism for helping members of the multilateral commerce system to resolve disputes. 

In an effort to protect their intellectual property, many countries have joined the World Intellectual Property Organization (WIPO), an organization whose sole purpose is securing IPR and fighting counterfeiting. Unfortunately, the conventions adopted by the WIPO provide very limited IPR enforcement powers, leaving some question as to the usefulness of the organization.

The Uruguay round of negotiations directly led to the creation and adoption of the Agreement on Trade-Related Intellectual Property Rights (TRIPS), which in turn sparked the creation of the World Trade Organization (WTO) in 1995. Since the institution of the WTO, countries that depend on innovation have insisted that commerce agreements include chapters on protecting different types of intellectual property rights with a focus on preferential trade negotiations. 

The United States began with the era of preferential trade agreements when it adopted the North American Free Trade Agreement (NAFTA). A similar agreement was signed by the European Union (EU). Many of these agreements have included "TRIPS plus" provisions. It has also become standard for bilateral funding treaties adopted by the United States and EU to include IPR provisions. 

While negotiating the TPP, the U.S. emphasized the importance of extending copyright safety and adjusting regulations so that patents could be lengthened and generic medications would be limited in TPP markets. There were also negotiations to adopt detailed guidelines related to biologic medicines, which are medicines derived from living organisms.

Some of the TRIPS plus measures that were added to the TPP include:

  • Extending the length of trademarks to ten years instead of the standard seven-year period required by TRIPS and removing safety limitations on sound marks
  • Establishing a minimum copyright term of 70 years, 20 years longer than the TRIPS 50-year copyright, as well as strengthening copyright enforcement by establishing prison sentences for theft of rights administration date and requiring that TPP members also sign the Web Treaties outlined by the WIPO
  • Requiring the enforcement of security measures for commerce secrets and techniques, which is not established under standard TRIPS rules
  • Securing information that has been submitted for marketing and advertising, with prescription drug information being protected for up to eight years and agricultural chemical substance information protected for 10 years
  • Establishing new express protections for biologic pharmaceutical drugs
  • Reducing delays in patent approvals by working towards uniform patent practices in TPP member nations

It's important that a few of these provisions are more extensive than TRIPS plus rules that had previously been negotiated by the United States and countries like Australia, Chile, and Peru. Additionally, the TPP seeks to establish intellectual property rights protections that reflect rules that are currently in place in the United States.

TPP: The New Gold Standard for Intellectual Property Protection in Trade Agreements?

If the TPP is fully ratified, it will be an extensive test of the ability of countries to implement intellectual property rights and security measures meant to protect data and promote innovation. It also remains to be seen if adopting the rules laid out by the TPP will increase innovation in member countries or if these new IPR protections will simply result in the problems experienced by the United States. For example, the current IPR rules in the United States have resulted in both substantial litigation and a variety of loopholes that have allowed pharmaceutical companies to prevent the release of generic medications.

Because the TPP is such a complex commerce agreement, it's nearly impossible to tell if it will be a success or failure until it has been fully adopted and implemented.

Trans-Pacific Partnership Agreement

The reason that the Trans-Pacific Partnership has been such a contentious issue, particularly in the United States, is because most of the negotiations took place behind closed doors, leading to a great deal of misinformation about what the agreement includes. While it appears that the efforts to adopt the TPP have failed, there is some chance that the agreement will be revived, according to a statement released by an APEC Ministerial Assembly in Vietnam.

The failure of the TPP was a major loss for the United States, particularly since the country was also unable to adopt SOPA and PIPA, two other agreements meant to expand protections for intellectual property rights. While the TPP did have a great deal of support, there was also a well-funded, dedicated opposition to the agreement, and those attempting to pass the TPP can expect this opposition to reemerge if there is ever an attempt to revive the agreement.

During his successful campaign, Donald Trump vowed to withdraw the United States from the TPP, and he recently fulfilled this promise by signing a government order. One of the biggest detractors of the TPP was Electronic Frontier Foundation (EFF), and while President Trump did withdraw from the TPP, his reasons for doing so most likely did not match the cause of the EFF.

President Trump Says the TPP is Dead, So What's Next for IP?

The administration of President Barack Obama worked to negotiate the TPP in an effort to strengthen the relationship between the United States and Pacific Rim nations. These negotiations were often tumultuous and faced a great deal of public opposition and, now that President Trump has withdrawn from the agreement, were ultimately fruitless.

Intellectual property rights were a central theme during TPP negotiations, and now that the TPP has failed, there are a variety of questions about the future of IPRs. Currently, IPRs are both granted and enforced at the national level. Without a commerce agreement between countries, there is no way to enforce intellectual property rights internationally, allowing counterfeiters to gain a foothold in the market. Interestingly, it was the inclusion of IPR protections in the TPP that resulted in the fiercest opposition.

Despite the failure of the Trans-Pacific Partnership Agreement, the conversation about how to best protect intellectual property rights across the world will continue. It is likely that negotiating these rights will be a central role in future bilateral and multilateral trade agreements.

First, We Have the 5Ws of the TPP

The purpose of the TPP was to establish a multilateral commerce agreement between 12 countries across the Pacific Rim. The countries that were included in the TPP include:

  • Australia
  • Brunei
  • Canada
  • Chile
  • Japan
  • Malaysia
  • Mexico
  • New Zealand
  • Peru
  • Singapore
  • United States
  • Vietnam

It is important to note that China, one of the largest economies in the world, was not included in the TPP and did not participate in negotiations.

As mentioned, the TPP took five years to negotiate, with little information being provided to the public during the negotiating process. On October 15, 2015, the TPP was finalized in Atlanta, Georgia. It was then signed on February 4, 2016, in Auckland, New Zealand. The countries that signed the TPP had to ratify the agreement within 24 months. This did not occur due to opposition in virtually every signatory country.

Based on the rules established by the United States Trade Representative (USTR), the TPP was meant to achieve the following goals:

  • Promote economic stability and progress in member countries
  • Help countries to create and retain jobs
  • Boost innovation, competition, and productivity in member countries
  • Improve the quality of life of people residing in TPP countries
  • Reduce poverty across the globe
  • Promote transparent governance and improve both environmental and labor protections

The TPP IP Innovations

The majority of clauses in the TPP related to intellectual property rights were based on rules that had already been established by TRIPS, PC, or WIPO. However, during negotiations, the United States pushed to strengthen the security of copyrights, commerce secrets and techniques, logos, and patents. The U.S. also sought to expand intellectual property rights for digital media property and pharmaceutical drugs. However, only a few of the protections requested by the United States were adopted in the final version of the TPP.

The rules that did make it into the TPP were meant to comply with the protections already established by the United States Trade Representative (USPTR).

The Debate on Test Data Exclusivity

One of the most important provisions of the TPP was related to protecting pharmaceutical test data. Under the TPP, pharmaceutical test information was protected between five and eight years. These protections were the most hotly debated areas of the TPP and faced opposition from both medical rights activists and United States pharmaceutical companies.

Pharmaceutical companies opposed this provision because it substantially reduced the period of time where test information would be protected. Current U.S. intellectual property law protects pharmaceutical test information for 12 years, and both pharmaceutical companies and U.S. negotiators wanted the TPP to reflect this length. However, to secure finalization of the agreement, the shorter protection period had to be accepted.

Medical rights activists were unhappy because they believed eight years was still too long, delaying more affordable generic drugs from reaching the market. Doctors without Borders, a noted medical rights group, stated that, "The big losers in the TPP are the patients and treatment providers in developing countries…The 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."

However, because the TPP was never fully adopted, the 12-year data exclusivity period is still the law for pharmaceutical companies in the United States.

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