[A2k] Updated KEI Blog on USTR's TPP Draft

Krista Cox krista.cox at keionline.org
Fri Mar 11 15:21:25 PST 2011


http://keionline.org/node/1091

On 10 March 2011, KEI released the US government draft on the Trans-Pacific
Partnership Agreement (TPP) Intellectual Property Rights Chapter, dated 10
February 2011.  The blog has been updated and now analyzes and highlights
several significant provisions or areas for concern.

These provisions relate to copyright, public health, agriculture, patents,
general enforcement obligations, and consumer protection and competition
safeguards.  They often go beyond that which is currently required by
international law and some are even more stringent than US patent law.

These points include the following:

Copyright

*  Copyright damages shall consider the suggested retail price or other
legitimate measure of value submitted by the right holder.

*  (art. 4.5) The term of protection of a work (including a photographic
work), performance, or phonogram is to be calculated:

     -  on the basis of the life of a natural person, the term shall be not
be not less than the life of the author and 70 years after the author’s
death;

      -  on a basis other than the life of a natural person, the term shall
be: (i) not less than 95 years from the end of the calendar year of the
first authorized publication of the work, performance, or phonogram, or (ii)
failing such authorized publication within 25 years from the creation of the
work, performance, or phonogram, not less than 120 years from the end of the
calendar year of the creation of the work, performance, or phonogram.

*  Would eliminate any possibility of parallel trade in any copyrighted
good. (art. 4.2)

*  Each Party shall establish or maintain a system that provides for
pre-established damages, which shall be available upon the election of the
right holder

*  Requires criminal enforcement for technological measures beyond WIPO
Internet Treaties, even when there is not copyright infringement (art. 5.9)

*  Impose a legal regime of ISP liability beyond the DMCA standards (art.
16.3)

*  Requires legal incentives for service providers to cooperate with
copyright owners in deterring the unauthorized storage and transmission of
copyrighted materials; (art. 16.3.b.vi.A)

*  Requires identifying internet users for any ISP, going beyond U.S. case
law (art. 16.3.b.xi)

*  Includes the text of the controversial US/KOREA side letter on shutting
down web sites

Public Health

* No mention of Doha Declaration on TRIPS and Public Health or WHO Global
Strategy on Public Health, Innovation and Intellectual Property.

*  Pharmaceutical Products:
*  [Placeholder for provisions related to data protection for pharmaceutical
products]
*  [Placeholder for provisions related to patent linkage]
*  [Placeholder for provisions related to patent term/data protection
relationship]
*  [Placeholder for definitions of “new pharmaceutical product” and “new
agricultural
product”]
*  [Placeholder for “Bolar” provision] (art. 8.5)

Agriculture

*  Parties agree to sign the International Convention for the Protection of
New Varieties of Plants, 1991

*  10 years of exclusive rights in agricultural chemcial test data (art.
9.1)

Patents

*  Parties agree to Patent Cooperation Treaty and the Patent Law Treaty

*  Patents shall be available for any new forms, uses, or methods of using a
known product; and a new form, use, or method of using a known product may
satisfy the criteria for patentability, even if such invention does not
result in the enhancement of the known efficacy of that product. (art. 8.1)

*  Requires patent for second use (art. 8.1)

*  In civil and administrative proceedings involving patents, each Party
shall provide for a rebuttable presumption that a patent is valid, and shall
provide that each claim of a patent is presumed valid independently of the
validity of the other claims.

*  [Placeholder for provisions concerning patent term
restoration/adjustment] (art. 8.6)

*  Where a Party provides proceedings that permit a third party to oppose
the grant of a patent, a Party shall not make such proceedings available
before the grant of the patent. (art 8.7)

*  USTR proposal in TPP:

     -  Each Party may only exclude from patentability inventions, the
prevention within its territory of the commercial exploitation of which is
necessary to protect ordre public or morality, including to protect human,
animal, or plant life or health or to avoid serious prejudice to the
environment, provided that such exclusion is not made merely because the
exploitation is prohibited by law. (art. 8.3)

     - Which is more restrictive than the text of AUSFTA, which reads:

          > 2. Each Party may only exclude from patentability: (a)
inventions, the prevention within their territory of the commercial
exploitation of which is necessary to protect ordre public or morality,
including to protect human, animal, or plant life or health or to avoid
serious prejudice to the environment, provided that such exclusion is not
made merely because the exploitation is prohibited by law; and (b)
diagnostic, therapeutic, and surgical methods for the treatment of humans
and animals . [emphasis added]

General Enforcement Obligations

*  Each Party shall provide ex officio border measures with respect to
imported, exported, or in-transit merchandise, or merchandise in free trade
zones, that is suspected of being counterfeit or confusingly similar
trademark goods, or pirated copyright goods (art. 14.4)

*  Requires adopting compensation for infringement without actual damages
(art.12.3 and 4)

*  For copyright and trademark, criminal punishment would apply even to
non-for-profit infringement (art. 15.1)

*  In determining damages for infringement of intellectual property rights,
its judicial authorities shall consider, inter alia , the value of the
infringed good or service, measured by the suggested retail price or other
legitimate measure of value submitted by the right holder. (art. 12.3.b)

Consumer Protection and Competition Safeguards

*  Weak, meek or Missing


-- 
Krista Cox
Staff Attorney
Knowledge Ecology International
www.keionline.org



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