[Ip-health] ACTA and TPP -- Re: US proposed TPP IP provisions are dangerous to access to medicines

Ante ante at ffii.org
Wed Mar 16 07:00:37 PDT 2011

On Monday 14 March 2011 16:06:58 Baker, Brook wrote:
> Even though the US's proposed patent and data provisions in its TPP text
> has multiple place-savers, there are substantial dangers to
> access-to-medicines reflected in hard text already proposed.

The US didn't want patents in ACTA, and will probably use the option to 
exclude them from the scope. If the reasons for this were substantial, the US 
wouldn't want the elsewhere either. 

Yet the US wants them in the TTP. Any know reason for this difference?

It is just that ACTA raised too much heat?

vriendelijke groet,


> The provision on liberalizing patentability, Art. 8.1, is the most
> troubling as it builds on earlier US FTAs that have mandated patents on
> "new uses."  TPP Art. 8.1 goes further not only by requiring patentability
> of new uses, but of new forms and new methods of use as well.
> The "new forms" language will cover variations on existing chemical
> entities, variations in formulation, method of delivery, dosage,
> combinations, etc., but only so long as the new form satisfies the basic,
> minimum standards of patentability in the first sentence of subsection 1.
> However, the new language specifically repudiates the language adopted by
> India in 3(d) and the few other copycat provisions that have been adopted,
> language that requires a showing of significant impact on efficacy
> (interpreted by India to mean more than mere bioavailability, stability,
> etc.).  My interpretation is that the US is trying to stop India-style
> provisions in their track, keep hammering away in India on modifying 3(d),
> and perhaps even issue a future WTO challenge.
> The new methods of use language, referenced in Art. 8.1, undermines
> stringent jurisdictions' interpretation of the "industrial application." 
> Methods of use liberalization would allow patenting of what many consider
> to be merely an "idea" - that for which a particular product is useful.
> This liberalization of industrial application towards what the US defines
> as "utility" is further amplified in Art. 8.12, which requires Parties to
> find that a claimed invention is industrially applicable if it has a
> "specific, substantial, and credible utility," even if that utility is
> abstract.
> In addition to substantially liberalizing standards of patentability, the
> US proposal also eliminates flexibilities that countries have under TRIPS
> to exclude certain subject matter.  Proposed Art. 2 eliminates flexibility
> to exclude patentability for plants and animals, and for diagnostic,
> therapeutic, and surgical methods of treatment.
> Art. 8.7  disallows pre-grant opposition procedures such as those that have
> been used successfully on multiple occasions in India.
> Art. 1.4 requires countries to ratify the flawed Art. 31bis outlining
> labyrinth procedures for export of predominate portions of medicines
> produced pursuant to compulsory licenses to countries with insufficient
> manufacturing capacitxy; and Art. 1.5 requires eventual adoption of the
> Patent Law Treaty.
> My quick read of the enforcement section is that the US is mostly focused
> on trademark and copyrights.  I don't see third party liability
> implicating patent-related activities anywhere.
> Brook
> Professor Brook K. Baker
> Health GAP (Global Access Project) &
> Northeastern U. School of Law, Program on Human Rights and the Global
> Economy Honorary Research Fellow, Faculty of Law, Univ. of KwaZulu Natal,
> SA 400 Huntington Ave.
> Boston, MA 02115 USA
> (w) 617-373-3217
> (c) 617-259-0760
> (f) 617-373-5056
> b.baker at neu.edu
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