Revised Trans-Pacific Partnership Agreement Gains Support

It appears as though a revised version of the Trans-Pacific Partnership Agreement may be nearing completion under a new title – the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (CPTPP). Amongst the changes agreed between the 11 remaining members are changes to some of the provisions of the IP chapter including patent term extensions, data protection and copyright term.

Since our article here, the Trans-Pacific Partnership Agreement has become a political football, in danger of being kicked to touch when America withdrew, only to be dramatically carried to the line by the remaining 11 members[1]. With one final push we should see this agreement over the line (again).

In addition to a new name, (which seems designed to make it more difficult for protestors – “CPTPP, No Way” doesn’t have the same ring to it), there have been some changes to the IP chapter. Certain provisions insisted on by the United States have been suspended. The suspended provisions include:

  • The provisions requiring patent term extensions due to granting authority delays and for delays in marketing approval;
  • The provisions requiring data protection for at least 5 years for pharmaceuticals and at least 8 years for biologics;
  • The provisions requiring a copyright term of the life of the author plus 70 years.

New Zealand does not currently provide patent term extensions (for any reason), provides data protection limited to five years (even for biologics) and a copyright term of life of the author plus 50 years. In the absence of provisions in the CPTPP, and little domestic will to change these issues, it seems likely that New Zealand will retain the status quo for the time being.

Other non-IP related changes, which are nevertheless particularly relevant in the New Zealand context, include a suspension of certain provisions related to Investor State Dispute Settlement, and the suspension of provisions relating to required administrative measures for Pharmac[2].

The suspension of these provisions, rather than their full excision, means that they can be reintroduced at a later date, for example if the US decides to re-join the agreement. However, the reintroduction would be a matter for negotiation, rather than an automatic process.

Whilst there are still a few issues to be negotiated between the parties, the signs are positive and we look forward to a new concluded agreement in the near future!

David Nowak - November 2017

[1] The remaining members negotiating the TPP are Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam

[2] PHARMAC is the New Zealand government agency that decides which pharmaceuticals to publicly fund in New Zealand.

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