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Intellectual Property Highlights From the TPP Text

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By Jonathan R. Tung, Esq. on November 09, 2015 10:29 AM

The full text of the Trans-Pacific Partnership (TPP) Agreement was released November 5, 2015. It was many years in the running -- seven years, basically -- but the masterpiece is finally available for public scrutiny. The Agreement extends its tentacles into approximately 40 percent of the world's annual GDP and almost 1 billion people's lives. Obviously, businesses are some of its greatest proponents.

The text is extremely lengthy and not terribly well organized. In-house lawyers are likely most interested in the intellectual property provisions that address marketing exclusivity time periods. Full details cannot be given here, but round numbers are provided.

Not Yet Set in Stone

Signatory countries still must ratify the agreement as presented. But if they do so, they bind themselves to the structure described in the first few chapters of the the agreement, sans certain country-tailored exceptions as provided for in Article 18.82.4 and Annexes 18-A through D.

It probably marks the first time in history a trans-national attempt to standardize intellectual property has ever progressed this far. In-house lawyers will want to highlight the numbers below.

Quick Highlights

  • Patent Term Adjustment: The Agreement provides that the parties shall make available means to adjust patent dates in the event of "unreasonable delay in a party's issuance of patents." Art. 18.46.3. "Unreasonable delay" means "a delay in the issuance of a patent of more than five years from the date of filing of the application in the territory of the Party, or three years after a request for examination of the application has been made, whichever is later." Art. 18.46.4. The language in the relevant sections seems to be more or less consistent with extant language in the USPTO rules for patent adjustment. But it potentially conflicts with 37. C.F.R. sec. 1.703 (b)(1), which allows for an adjustment beyond a three year period. Potential conflicts lies with USPTO and Art. 18.46.4.
  • Agricultural Chemical Products Marketing Exclusivity: The TPP forces parties to grant at least 10 years of marketing exclusivity with the clock starting from the date of marketing approval of a new agricultural product if, as a condition for granting that approval, the nation requires submission of various safety data or testing, which may also include safety or approval in another territory.
  • Pharmaceuticals: Essentially the same rules for agricultural products, except that the marketing exclusivity only lasts 5 years, not 10.
  • Biologics: Marketing exclusivity appears to be anywhere from five to eight years depending on the circumstances.
  • Marketing Exclusivity and Patent Term: For any of the product types described above, the TPP requires that no signatory that provides marketing exclusivity under the provision shall alter the marketing exclusivity period at the time when the patent protection on the product terminates.

Hello ... China?

China is not one of the signatories to the TPP, and there is talk that this will only further strain relations. Some have noted that Obama's rhetoric regarding the TPP os unnecessarily belligerent. The eventual ratification of the relevant sections in the TPP will be a somewhat ironic victory for President Obama: getting the jump on China in writing international trade rules, but also further ruffling the feathers of America's largest trading partner.

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