Trans-Pacific Partnership Breakdown, Part 1

Earlier this week, the intellectual property section of the Trans-Pacific Partnership (TPP) leaked to the public (via Wikileaks).  The TPP has been shrouded in mystery since its inception.  The participating governments have conducted the negotiations in a highly secretive manner, preventing potential stakeholders (even Congressmen and their staffers) from seeing the draft text before the document gets finalized.  These transparency issues strongly resemble criticisms of the process for the Anti-Counterfeiting Trade Agreement (ACTA).  The draft text also skews heavily towards proposals in previously rejected legislation (such as SOPA).  While the document resembles current US law on certain matters (particularly copyright), the TPP includes some notable (and objectionable) additions.  This post will primarily cover the sections with the most significant changes: patent law, copyright law, and the enforcement mechanisms.  Because of the complexity of the TPP and its accompanying issues, I will discuss the copyright and enforcement mechanisms sections in their own blog post on Monday.

Trademarks

The trademark section does not contain many significant additions, beyond geographic indicators.  Geographic indicators are when certain items must come from certain regions of the world.  For example, champagne must be from the Champagne region of France (otherwise it is sparkling white wine).  At the moment, geographic indicators are not part of US intellectual property law (which renders certain indicators on items like champagne and pizza unenforceable in the US).  The inclusion of geographic indicators is relatively minor (as it was with ACTA), but it is notable.  Enforcement of geographic indicators would represent a change of US law, after all.

Patents

The patent section includes some radical proposals for changes in the patent law of the countries involved in the TPP.  While the patent law section primarily focuses on pharmaceutical patents (which I have less experience and knowledge of, so this post will not discuss them in any depth), the section proposes allowing for patents on the following: genetics, “plants and animals,  biological processes for plants and animals, and the diagrams, plans, rules and methods for carrying out mental processes, playing games or doing business, and mathematical methods as such; software as such; methods to present information as such; and aesthetic creations and artistic or literary works.” (TPP Draft Article QQ.E.1, subsection 3).

The last section, from “diagrams” onward represents the largest break with US patent law.  It is not entirely clear what this section really patents, particularly in regard to “mental processes.”  This section does appear to allow for patenting game designs, including the mathematical methods, software, and presentation of games.  Such laws would greatly disrupt the gaming industry, by potentially limiting the tools available for smaller developers.  Larger companies, such as Electronic Arts and Activision, have greater access to legal representation and can compile a large patent portfolio quicker than smaller developers.  If existing software patents are any indication, such patent portfolios provide a potential barrier to entry for new competition (since it is expensive to conduct patent lawsuits, due to their technical nature and prolonged periods of discovery).  Finally, the Mexican proposal includes artistic and literary works.  These potentially fall within the jurisdiction of copyright law.   Copyright law normally allows for certain strong exceptions (such as fair use), which ensure that certain parties can continue using the copyrighted content when public policy deems such use wise (such as education).  This overlap potentially renders these exceptions moot.  While this section appears to be proposed by Mexico only, the draft does not note any objection by the other countries.  Other parts of the draft note when certain countries propose or oppose certain sections (both in terms of content and wording).  Such a statement does not appear around this section.

The patent section also contains some interesting language that potentially elongates protection for certain items.  The two major proposals here involve allowing for “inventive step” patents and allows for the term to account for any “unreasonable delays.”  Article QQ.E.1 allows for patenting already known technologies as long as these applications involve an inventive step.  This includes new uses of preexisting technologies.  One potential consequence for such patents is the indefinite extension of patent terms.  Normally, terms last 20 years.  However, if applicants merely have to find new uses for their previous technologies in order to seek a new patent, an entity can potentially seek a new patent every time they find a new use.  Article QQ.E.XX requires parties to adjust patent terms to account for any unreasonable delays in the granting of the initial patent.  If there is a four year gap between when the patent holder filed for examination and when they receive the official grant, then the period must be adjusted to account for that gap.

Check back Monday for Part 2: copyright and enforcement mechanisms.  In the meantime, I suggest reading the Electronic Frontier Foundation’s excellent summary of the TPP at https://www.eff.org/issues/tpp.

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