[Ip-health] Rep. Eshoo (D-CA) Sends Letter to USTR Requesting Clarification Regarding Conflicts in TPP Language on Damages and BPCIA, ISDS

Andrew S. Goldman andrew.goldman at keionline.org
Thu Oct 22 06:18:23 PDT 2015


Rep. Eshoo (D-CA) Sends Letter to USTR Requesting Clarification Regarding
Conflicts in TPP Language on Damages and BPCIA, ISDS

http://www.keionline.org/node/2349

Submitted by Andrew Goldman on 20. October 2015 - 17:31

On Tuesday October 20, 2015, Representative Anna Eshoo (D-CA), one of the
principal authors of the Biologic Price Competition and Innovation Act
(BPCIA), sent a letter to the United States Trade Representative requesting
timely clarification regarding the Trans-Pacific Partnership's impact "on
existing U.S. laws that limit damages for infringement of intellectual
property (IP) rights, and on the potential ISDS ramifications for those
conflicts."

The BPCIA, as the letter points out, provides that, "...in some cases the
'sole and exclusive' remedy for patent infringement pertaining to biologics
is a 'reasonable royalty.'"

As Representative Eshoo states, "I'm concerned that the TPP agreement's
language on damages in the IP Chapter provides no room for statutory
limitations on damages, and thus conflicts with the Affordable Care Act's
provisions regarding biologic drugs under 35 U.S.C. § 271(e)(6)(B)...."

The letter goes on to suggest that if the TPP's language on damages
conflicts with the BPCIA and other laws that similarly provide for
statutory limitations on damages, the conflict "would leave the U.S.
vulnerable to costly private sector actions under the TPP's ISDS mechanism
which only exempts intellectual property rights to the extent they are
consistent with the TPP and [TRIPS]...[and] could potentially limit the
ability of Congress to provide statutory limitations on damages for other
important intellectual property infringement problems."

The letter is available here:
http://keionline.org/sites/default/files/10.20.15_Letter_to_USTR_Eshoo.pdf


--
Andrew S. Goldman
Counsel, Policy and Legal Affairs
Knowledge Ecology International
andrew.goldman at keionline.org // www.twitter.com/ASG_KEI
tel.: +1.202.332.2670
www.keionline.org



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