Tuesday, July 25, 2017

IP Afta' NAFTA

The Office of the United States Trade Representative ("USTR") published its "Summary of Objectives for the NAFTA Renegotiation" on July 17, 2017.  Among its musings is a section devoted to intellectual property.  Here are the intellectual property "objectives":

Intellectual Property: 
- Promote adequate and effective protection of intellectual property rights, including through
the following:
  • Ensure accelerated and full implementation of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), particularly with respect to meeting enforcement obligations under TRIPS.
  • Ensure provisions governing intellectual property rights reflect a standard of protection similar to that found in U.S. law.
  • Provide strong protection and enforcement for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property,including in a manner that facilitates legitimate digital trade.
  • Prevent or eliminate discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights.
  • Ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works.
  • Provide strong standards enforcement of intellectual property rights, including by requiring accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms.
  • Prevent or eliminate government involvement in the violation of intellectual property rights, including cybertheft and piracy.
- Secure fair, equitable, and nondiscriminatory market access opportunities for United States persons that rely upon intellectual property protection. 
- Respect the Declaration on the TRIPS Agreement and Public Health, adopted by the World Trade Organization at the Fourth Ministerial Conference at Doha, Qatar on November 14, 2001, and to ensure that trade agreements foster innovation and promote access to medicines. 
- Prevent the undermining of market access for U.S. products through the improper use of a country’s system for protecting or recognizing geographical indications, including failing to ensure transparency and procedural fairness and protecting generic terms.


Among the issues that apparently pique the interest of the USTR are several that may be quite challenging to address.  A few are discussed below.

One is to "[e]nsure provisions governing intellectual property rights reflect a standard of protection similar to that found in U.S. law."  If U.S. intellectual property ("IP") law were fixed and static, this might be relatively straight-forward, encroachments on national sovereignty notwithstanding.  However, U.S. IP law has evolved at a brisk pace over the last decade, with the United States Supreme Court (the "Supremes") overturning long-standing lower court precedents in areas such as availability of injunctive relief, exhaustion doctrine, patentable subject matter, and nonobviousness.  This raises the question of whether Canada and Mexico should be expected continually to change their IP laws to reflect the fluid evolution of U.S. IP laws?

Another is to "Provide strong protection and enforcement for new and emerging technologies..."  Do "new and emerging technologies" include software, DNA, or methods of medical diagnosis or treatment?  If so, will the U.S. Congress statutorily reverse the Supremes' recent decisions in Alice Corporation v. CLS Bank International (2104), Association for Molecular Pathology v. Myriad Genetics (2013), and Mayo Collaborative Services v. Prometheus Laboratories (2012), which rendered inventions in these fields largely unpatentable subject matter?

Questions also arise regarding how the Doha Declaration and "ensur[ing] that trade agreements foster innovation and promote access to medicine" might affect biopharmaceutical patents, and how new NAFTA provisions might attempt to "Prevent the undermining of market access for U.S. products" that, presumably, are described by their sellers using geographical indications registered by others.

An especially intriguing objective is to "Provide strong standards enforcement of intellectual property rights, including by requiring accessible, expeditious, and effective...criminal enforcement mechanisms."  Does this mean that "criminal enforcement mechanisms" must be available not only in copyright, trademark, and trade secrecy law, where they already exist, to some extent, in the U.S., but also extended to patent law, where U.S. law currently lacks such remedies?

As discussed earlier on Lexvivo, the AstraZeneca Canada v. Apotex (2017) decision, in which the Supreme Court of Canada/La Cour Supr√™me du Canada annulled the "promise doctrine", may help to mollify U.S. demands for Canadian IP conformity.  However, the opaque wording of the USTR's "Summary of Objectives for the NAFTA Renegotiation" introduces considerable uncertainty as to what an acceptable agreement on IP issues would be.
  

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