[A2k] Notes from meeting with USTR on the TPP IPR chapter

Jamie Love james.love at keionline.org
Mon Dec 13 15:44:12 PST 2010

Source URL: http://keionline.org/node/1035

Notes from meeting with USTR on the TPP IPR chapter
Created 13 Dec 2010 - 4:21pm

Today USTR provided some additional insight into negotiations of a
regional, Asia-Pacific trade agreement, known as the Trans-Pacific
Partnership (TPP) Agreement. The USTR web page on the TPP negotiations
is http://www.ustry.gov/tpp [1]. At present, the TPP negotiators
include Australia, Brunei Darussalam, Chile, New Zealand, Peru,
Singapore and Vietnam. Japan and Canada have expressed interest in
joining the negotiations, and USTR clearly would like to design an
agreement that will be open to other countries. Our discussions
focused on the intellectual property chapter in the agreement.
According to USTR, the only text that has been tabled for the IP
chapter concerns trademarks and general provisions -- the patents,
copyrights, test data and enforcement sections of the IP chapter are
being designed now. USTR expects a number of health related issues to
be raised in the upcoming Santiago Chile meeting in February 2011.

USTR said the IP chapter for the TPP would harmonize IPR obligations
strictly upwards.

The lead negotiator for the TPP is Barbara Weisel. The deputy lead
negotiator is David Bisbee. Among other things, David Bisbee has
written notes on how to influence USTR [2]. The chapter lead for
intellectual property rights is Stan McCoy.

The Obama Administration has developed a policy on transparency for
the TPP negotiations which apparently does not involve any commitments
to sharing the text with the general public, even after it has been
given to all member countries in the negotiation and to hundreds of
corporate insiders on the USTR advisory board system.

The TPP negotiations will involve substantive intellectual property
right norms, as well as norms for the enforcement of those rights.
Unlike ACTA, the TPP will be subject to a dispute resolution process,
which means that the U.S. and other countries will be subject to
"fines" if they are not in compliance with the agreement.

The TPP is a unique bilateral for the U.S. in that it involves
countries with very different levels of development, and as a
consequence, there is considerable interest in the "architecture" of
the intellectual property chapter.

In today's meeting, KEI and others pressed the USTR on a number of
issues relating to access to medicine. Among other things, USTR was
asked to insure that developing countries would benefit from the
flexibilities in agreements regarding access to medicine that were
negotiated between the House Democrats and the Bush White House in May
10, 2007. (See: here [3], and here [4]). The Obama Administration
understands that public health, development and consumer groups want
the May 10, 2007 agreement to be a starting point for health
safeguards, but they were not giving any reassurances that this would
be the case.

After being told the Obama Administration would not consider anything
that lowered IPR norms in the TPP negotiations, and only measures that
raised norms, KEI reminded USTR has the Clinton and Bush
Administration both were willing to lower IPR norms, when they were
persuaded it was appropriate. This included:

President Clinton's December 1, 1999 speech to the WTO [5] endorsing
new changes in U.S. trade policy to address concerns over access to
President Clinton's Executive Order 13155 [6]of May 10, 2000,
concerning Access to HIV/AIDS Pharmaceuticals and Medical
President Bush's decision to agree to the November 14, 2001 Doha
Declaration on TRIPS and Public Health.
President Bush's decision to accept the waiver to 31.f of the TRIPS
agreement on 30 August 2003.
President Bush's July 16, 2004 agreement between USTR and Canada [7]
to modify NAFTA to allow exports of medicines under compulsory
President Bush's May 10, 2007 agreement on the bipartisan New Trade
Policy [8], which eliminated patent extensions, eliminated linkage of
drug registration and patents, and relaxed test data protection for
the Peru Free Trade Agreement.
For the Obama Administration to claim that it can only harmonize
upwards is really disappointing, given the promises that Obama made
during his presidential campaign.

On other topics, KEI pressed USTR to not only respect current U.S.
legal norms, but also the flexibility of the U.S. Congress to change
those norms. One example of this was the legislative proposal to
eliminate exclusive rights for test data protection [9] in cases where
there is a conflict with medical ethics.

Related: US Industry IP memo for the TPP negotiations leaked[10]

[1] http://www.ustry.gov/tpp
[2] http://keionline.org/sites/default/files/Trade_and_Advocacy_Bisbee.pdf
[3] http://keionline.org/content/view/48/1
[4] http://www.cptech.org/ip/health/trade/
[5] http://clinton4.nara.gov/WH/New/WTO-Conf-1999/factsheets/fs-012.html
[6] http://en.wikisource.org/wiki/Executive_Order_13155
[7] http://keionline.org/sites/default/files/Zoellick_Peterson_16July2004_Nafta.pdf
[8] http://keionline.org/sites/default/files/hwm_05_14_07.pdf
[9] http://keionline.org/node/965

James Love.   US Mobile is +1.202.361.3040.  Geneva Mobile is +41.76.413.6584

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