The Patent Provisions of TPP: An Endpoint or should be just a mere Starting Point for more and better Patent Protection in a revised NAFTA

The Patent Provisions of TPP: An Endpoint or should be just a mere Starting Point for more and better Patent Protection in a revised NAFTA

Markus Nolff

In his 2018 State of the Union Address, President Trump stated that, “one of my greatest priorities is to reduce the price of prescription drugs.” Few sentences later, President Trump stated that he, “will fix bad trade deals and negotiate new ones,” and “will protect ... American intellectual property through strong enforcement of the trade rules.” One week after the State of the Union Address, the Council of Economic Advisers released a study containing the following recommendations: (i) address high domestic prices by fostering better market price competition domestically and, (ii) to incentivize development of new (inventive) pharmaceutical products by addressing the low overseas pricing of pharmaceuticals which takes little account of the cost of their research and development (hereinafter “R&D”).

Irrespectively, of how any trade agreements or policy could result in an increase in overseas pricing of pharmaceuticals it is clear that being able to price pharmaceuticals above their marginal cost of production, for example to take account of the cost of R&D, will require the right to exclude third parties (competitors), either through patent protection or similar sui generis protection, from producing or selling (copied) pharmaceutical products. Since patent protection of pharmaceuticals is the driving force in the development of patent law, this should give a new push for more effective patent protection and in more countries for a wider global reach.

How more and better patent protection may be archived is the purpose of this article. More specifically, will discuss (A) whether or not the provisions of the Trans-Pacific Partnership agreement (hereinafter “TPP”) would be a good endpoint or should be a mere starting point, and (B) whether or not adding also the substantive provisions of the draft proposal for a Treaty Supplementing the Paris Convention as far as Patents are Concerned (also alternatively titled and hereinafter referred to as “Basic Proposal” Patent Law Treaty) not yet contained in either TRIPS or TPP would be a suitable end point for a revised patent section of a renegotiated North American Free Trade Agreement (hereinafter “NAFTA”).

100 J. Pat. & Trademark Off. Soc’y 103(2018)

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