International Intellectual Property Law: Intellectual Property and the Trans-Pacific Partnership Agreement


On October 4, 2015, Ministers of the 12 Trans-Pacific Partnership (“TPP”) countries – Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam – announced conclusion of their negotiations. The result is an agreement that has been promoted as enhancing economic growth; supporting the creation and retention of jobs; enhancing innovation, productivity and competitiveness; raising living standards; reducing poverty; and promoting transparency, good governance, and enhanced labor and environmental protections.

TPP’s chapter regarding intellectual property (“IP”) covers patents, trademarks, copyrights, industrial designs, geographical indications, trade secrets, other forms of intellectual property, and enforcement of intellectual property rights, as well as areas in which participating countries agree to cooperate. The IP chapter will make it easier for businesses to search, register, and protect IP rights in new markets, which is particularly important for small businesses.

The chapter establishes standards for patents, based on the World Trade Organization’s (“WTO”) agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), and international best practices. On trademarks, it provides protections of brand names and other signs that businesses and individuals use to distinguish their products in the marketplace. The chapter also requires certain transparency and due process safeguards with respect to the protection of new geographical indications, including for geographical indications recognized or protected through international agreements. These include confirmation of understandings on the relationship between trademarks and geographical indications, as well as safeguards regarding the use of commonly used terms.

In addition, the chapter contains pharmaceutical-related provisions that are promoted as facilitating both the development of innovative medicines and the availability of generic medicines, taking into account the time that various participating countries may need to meet these standards. The chapter includes commitments relating to the protection of undisclosed test and other data submitted to obtain marketing approval of a new pharmaceutical or agricultural-chemicals product. It also reaffirms participating countries’ commitment to the WTO’s 2001 Declaration on the TRIPS Agreement and Public Health, and in particular confirms that participating countries are not prevented from taking measures to protect public health, including in the case of epidemics such as HIV/AIDS.

In copyright, the IP chapter establishes commitments requiring protection for works, performances, and phonograms such as songs, movies, books, and software, and includes provisions on technological protection measures and rights management information. As a complement to these commitments, the chapter includes an obligation for participating countries to continuously seek to achieve balance in copyright systems through, among other things, exceptions and limitations for legitimate purposes, including in the digital environment. The chapter requires participating countries to establish or maintain a framework of copyright safe harbors for Internet Service Providers (“ISPs”). These obligations do not permit participating countries to make such safe harbors contingent on ISPs monitoring their systems for infringing activity.

Finally, countries participating in the TPP agree to provide strong enforcement systems, including, for example, civil procedures, provisional measures, border measures, and criminal procedures and penalties for commercial-scale trademark counterfeiting and copyright or related rights piracy. In particular, countries participating in the TPP will provide the legal means to prevent the misappropriation of trade secrets, and establish criminal procedures and penalties for trade secret theft, including by means of cyber-theft, and for cam-cording.

Practice Tip: Some provisions of the TPP, including protection for biological drugs, have been the subject of considerable controversy. For an interesting discussion of some of these issues, see here.

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