Negotiations Concluded for Revised Trans-Pacific Partnership Agreement

On 23 January 2018 the terms of the successor to the Trans-Pacific Partnership Agreement – the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (CPTPP) were agreed. Amongst the changes agreed between the 11 remaining members (after the United States withdrew) are suspension of some of the provisions of the IP chapter including patent term extensions, data protection and extension of copyright term.

The remaining 11 members, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, agreed to suspend 22 clauses from the original Agreement, including several in the area of IP. These include:

· The provisions requiring patent term extensions due to granting authority delays and for delays in marketing approval;

· The provisions requiring data protection for at least 5 years for pharmaceuticals and at least 8 years for biologics;

· The provisions relating to what should be considered patentable subject matter;

· The provisions requiring a copyright term of the life of the author plus 70 years;

· The provisions requiring more extensive protections to technological protection measures.

New Zealand does not currently provide patent term extensions (for any reason), provides data protection limited to five years (even for biologics) and a copyright term of life of the author plus 50 years. As such, much less change will be required to New Zealand IP laws as a result of the CPTPP.

Other non-IP related changes, which are nevertheless particularly relevant in the New Zealand context include a suspension of certain provisions related to Investor State Dispute Settlement, and the suspension of provisions relating to required administrative measures for Pharmac. The list of suspensions can be found here.

The suspension of these provisions, rather than their full excision, means that they can be reintroduced at a later date, for example if the US decides to re-join the agreement. However, the reintroduction would be a matter for negotiation, rather than an automatic process.

The CPTPP is due to be signed by the member nations on 8 March 2018, but will not come into force unless New Zealand ratifies the treaty. Legislation implementing the former TPP was passed by the (now former) New Zealand government. However, the Trans-Pacific Partnership Agreement Amendment Act 2016 never commenced as the TPP was never ratified. As this Act goes beyond what is now required by the CPTPP, presumably it will either be amended or replaced.

David Nowak - February 2018
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