Notes from meeting with USTR on the TPP IPR chapter

Today USTR provided some additional insight into negotiations of a regional, Asia-Pacific trade agreement, known as the Trans-Pacific Partnership (TPP) Agreement. The USTR web page on the TPP negotiations is At present, the TPP negotiators include Australia, Brunei Darussalam, Chile, New Zealand, Peru, Singapore and Vietnam. Japan and Canada have expressed interest in joining the negotiations, and USTR clearly would like to design an agreement that will be open to other countries. Our discussions focused on the intellectual property chapter in the agreement. According to USTR, the only text that has been tabled for the IP chapter concerns trademarks and general provisions — the patents, copyrights, test data and enforcement sections of the IP chapter are being designed now. USTR expects a number of health related issues to be raised in the upcoming Santiago Chile meeting in February 2011.

USTR said the IP chapter for the TPP would harmonize IPR obligations strictly upwards.

The lead negotiator for the TPP is Barbara Weisel. The deputy lead negotiator is David Bisbee. Among other things, David Bisbee has written notes on how to influence USTR. The chapter lead for intellectual property rights is Stan McCoy.

The Obama Administration has developed a policy on transparency for the TPP negotiations which apparently does not involve any commitments to sharing the text with the general public, even after it has been given to all member countries in the negotiation and to hundreds of corporate insiders on the USTR advisory board system.

The TPP negotiations will involve substantive intellectual property right norms, as well as norms for the enforcement of those rights. Unlike ACTA, the TPP will be subject to a dispute resolution process, which means that the U.S. and other countries will be subject to “fines” if they are not in compliance with the agreement.

The TPP is a unique bilateral for the U.S. in that it involves countries with very different levels of development, and as a consequence, there is considerable interest in the “architecture” of the intellectual property chapter.

In today’s meeting, KEI and others pressed the USTR on a number of issues relating to access to medicine. Among other things, USTR was asked to insure that developing countries would benefit from the flexibilities in agreements regarding access to medicine that were negotiated between the House Democrats and the Bush White House in May 10, 2007. (See: here, and here). The Obama Administration understands that public health, development and consumer groups want the May 10, 2007 agreement to be a starting point for health safeguards, but they were not giving any reassurances that this would be the case.

After being told the Obama Administration would not consider anything that lowered IPR norms in the TPP negotiations, and only measures that raised norms, KEI reminded USTR has the Clinton and Bush Administration both were willing to lower IPR norms, when they were persuaded it was appropriate. This included:

  • President Clinton’s December 1, 1999 speech to the WTO endorsing new changes in U.S. trade policy to address concerns over access to medicines.
  • President Clinton’s Executive Order 13155 of May 10, 2000, concerning Access to HIV/AIDS Pharmaceuticals and Medical Technologies.
  • President Bush’s decision to agree to the November 14, 2001 Doha Declaration on TRIPS and Public Health.
  • President Bush’s decision to accept the waiver to 31.f of the TRIPS agreement on 30 August 2003.
  • President Bush’s July 16, 2004 agreement between USTR and Canada to modify NAFTA to allow exports of medicines under compulsory licenses.
  • President Bush’s May 10, 2007 agreement on the bipartisan New Trade Policy, which eliminated patent extensions, eliminated linkage of drug registration and patents, and relaxed test data protection for the Peru Free Trade Agreement.

For the Obama Administration to claim that it can only harmonize upwards is really disappointing, given the promises that Obama made during his presidential campaign.

On other topics, KEI pressed USTR to not only respect current U.S. legal norms, but also the flexibility of the U.S. Congress to change those norms. One example of this was the legislative proposal to eliminate exclusive rights for test data protection in cases where there is a conflict with medical ethics.

Related: US Industry IP memo for the TPP negotiations leaked