Canada and the TPP: An IP Challenge

Canada and the TPP: An IP Challenge

02.21.13 | By Jay Taylor

Innovating across all sectors of the economy, including biopharmaceuticals, software and information technology, is essential to driving economic growth, which I discussed today as part of an event hosted by the U.S. Chamber of Commerce's Global Intellectual Property Center. With the next round of the Trans-Pacific Partnership (TPP) agreement beginning March 4 in Singapore, it is absolutely essential that we address what these negotiations could mean for the future of innovation.

For the U.S. to remain the world's leader in R&D and innovation, protecting intellectual property (IP) must be of paramount importance in U.S. law and in trade agreements. Unfortunately, some countries currently part of the negotiations remain outliers on many IP issues. Canada, for example, is on the USTR's Priority Watch List due to its weakness in patents, copyrights and trademarks. This harms our economy, jobs, and ultimately the world's patients who await the next great medical advancement. As I mentioned today, there are several issues that need to be addressed for innovating industries and specifically biopharmaceutical companies to compete in the market:

  • Enforcement of Patents and Patent Term Restoration: Canada remains one of the only industrialized nations that fails to compensate innovators for a patent life that is shortened from administrative delays, which is particularly challenging because the approval process on average is longer than in the U.S. or Europe.
  • Patent Utility: In Canada, the courts have created a heightened standard for patentable utility for pharmaceuticals that raises uncertainty as to how much information needs to be disclosed in patent applications. This issue undermines the ability of innovative biopharmaceutical companies to enforce and defend their existing patents. This standard is inconsistent with common practice in the U.S. and international obligations against discrimination on the basis of field technology.
  • Right of Appeal: Whereas generic biopharmaceutical manufacturers are provided an effective right of appeal from adverse patent decisions, the same right of appeal is not provided to innovator companies if a Court rules in favor of the generic producer.

Countries like Canada that choose not to bring their IP standards in line with other countries pose a great risk to American jobs and economic growth. More importantly, weak IP protections erode the climate necessary to research and develop tomorrow's life-saving medicines. We must seize every opportunity to remedy these issues through trade agreements like the TPP, other bilateral discussions, and enforcement of existing rules. With so many countries involved in the TPP negotiations, if done correctly, it could serve as a benchmark for the way free trade agreements are negotiated going forward and protect intellectual property and U.S. innovation.

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