[Ip-health] US-Canada-Mexico Trade Agreement Provisions on Injunctions and Damages | Knowledge Ecology International

James Love james.love at keionline.org
Mon Oct 1 13:10:50 PDT 2018



I'll be doing a deeper dive on some issues in the new Canada, Mexico, US
trade agreement text, but here is an early installment, which needs to be
read from the link.  This is just a summary of the blog.

This blog focuses on the norms for damages, which are inconsistent with
U.S. law, including, for example, the Biologics Price Competition and
Innovation Act of 2009 (BPCIA).

The BCCIA places limits on damages for patent infringement, and the new
NAFTA text does not provide for such exceptions to the norm on damages for
patent infringements.

The broader issue, other than the several U.S. statutes that are contrary
to the proposed norm for damages, is the limits it puts on lawmakers.

The blog quotes from an earlier letter from Rep. Eshoo to USTR on this
issue, when it was proposed in the context of the TPP.

Representative Eshoo wrote to the USTR to register an objection to the
language on damages, citing the BPCIA law, which she described as, “an
important mechanism to increase timely transparency of relevant patents for
biologic drugs, and to decrease the risks of expensive litigation for
biosimilar manufacturers.” Eshoo also noted that the provision would leave
the U.S. exposed to acts brought under the investment provisions of the
agreement, and “also limit the ability of Congress to provide statutory
limitations on damages for other important intellectual property
infringement problems.”

Orphan copyrighted works is another area where this is important.

Also, the agreement opens the U.S. up to investment cases over the state
sovereign immunity for patent infringement, something quite important for
research purposes.


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