Late June 2015 saw much of Washington DC focused on whether Congress would give President Obama “TPA,” the so-called fast track trade promotion authority, that would allow concluding negotiations on the “TPP,” the Trans-Pacific Partnership, a trade deal that could have widespread international implications for IP, or intellectual property. The measure passed, ultimately, by one vote. Therefore, it appears that the seven-year-old TPP negotiations may move toward closure. Understanding the TPP and its IP implications thus becomes important for many in the international marketplace, especially since the next round of negotiations is set to begin shortly.
It is first important to understand the TPP more broadly. The Trans-Pacific Partnership or TPP is a proposed trade agreement among several Pacific countries. It grows out of an earlier pact signed by Brunei, Chile, Singapore, and New Zealand in 2006, with Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States, and Vietnam later, in 2008 and thereafter, joining the confidential negotiations. Among other things (such as lowering tariffs and enforcing shared standards for labor law and environmental law), TPP seeks to establish a common framework for intellectual property. In some ways, this will expand the domestic understanding and applicability of IP standards to the international realm. But in other ways, it could mean altering the IP landscape in which pea toners are used to operating.
Though the negotiations of the IP provisions and other aspects of the trade deal have been formally designated as confidential and non-public, various sources have made drafts publicly available and the United States Trade Representative has publicly outlined the U.S. positions generally. This allows discussion of the central IP aspects of the proposed pact on trademark, copyright and related rights, and patents.
Depending on one’s jurisdiction, the effects may be large or small. For those operating operating in the United States, the impacts will vary. In the trademark area, the TPP does not change existing US substantive law so much as it seemingly expands US trademark concepts overseas. But the TPP, if adopted, would alter “standards” for preliminary injunctions, as the draft contains rules quite different from US law, including a 10-day window in which a court must grant the injunction, and no requirement that the right holder show likely irreparable harm. Conversely, in the copyright area, TPP seems to extend certain substantive protections beyond current US law, such as in extending rights to copyright holders beyond US law protections of “fixed” copies to over “temporary” ones. The TPP also seemingly requires that US adopt pre-established statutory damages for infringement of trademarks “in an amount sufficiently high to constitute a deterrent to future infringements and to compensate fully the right holder,” whereas statutory damages in the US are, as of now, a feature of the copyright statute. Further, the TPP patent provisions remove the requirement that an inventor disclose the “best mode” of the invention, long a core concept at the heart of US patent law’s trade off of limited duration monopoly rights for dedication to public realm thereafter of the true and best version of the invention. Moreover, the changes in preliminary injunction standards would also apply in contexts beyond trademark, and whether such standards would necessarily become generally applicable remains an open question. For those operating in TPP countries outside the United States, the TPP seems largely to make US intellectual property laws as the standard for all, would require significant changes to other countries’ copyright laws, for example. These include obligations for TPP countries to (i) expand the duration of copyright, (ii) redefine or limit fair use, (iii) adopt or expand criminal sanctions for copyright infringement, and (iii) make others changes as well.
In the end, IP lawyers should remain aware of the progress of TPP negotiations and its eventual adoption or rejection by partnership countries. It clearly may have have an effect in core intellectual rights and concepts of patent, copyright and trademark across jurisdictions. Helping clients understand and react to these changes is easier if one is ahead of the curve.
