IP issues in the signed Comprehensive and Progressive Trans-Pacific Partnership.

On the morning March 9th 2018 in Santiago, Chile the economic ministers of Chile, Japan, Australia, Brunei, Australia, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam have signed the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP).

Although the United States has withdrawn from its predecessor agreement – TPP - on January 24th  2017, CPTPP is still considered the largest free trade agreement to be concluded in recent times with a market of 500 million people, accounting for 13.5% of global economy and GDP of US$ 10,000 billion. The CPTPP will be effective 60 days after being approved by 6 of the 11 members. States parties to the Agreement believe that the Agreement is a strong signal against protectionistism and advocates a world of diversification, multilateralisation of trade in order to maintain market openness, promote trade the world and create new economic opportunities for people of all income levels and economic  circumstances.

Basically, the CPTPP integrates and maintains the contents of the TPP before, but there are 20 groups of postponed obligations, of which 11 are related to IP, most of which were issues that previously the United States launched at the TPP negotiation, which was highly contested before the agreement was reached. Among the above mentioned obligations is the patent term adjustment for unreasonable granting authority delays,  patent term adjustment for unreasonable curtailment, protection of undisclosed test or other data,  biologics, protection for copyright and related rights; protection of encrypted program-carrying satellite and cables signal, etc.

According to these, each party shall change its laws and practices and make best efforts to process patent applications in an efficient and timely manner with a view to avoiding unreasonable or unnecessary delays (for instance, delays in patent substantive examination due to limited capacity), if there are unreasonable delays in a party’s issuance of patents that party shall provide the means to, and at a request of the patent owner shall, adjust the term of the patent to compensate for such delays;  with respect to a pharmaceutical product or biologic that is subject to a patent, each party shall make available an adjustment of the patent term to compensate the patent owner for unreasonable curtailment of the effective patent term as a result of the marketing approval process, the protection of undisclosed test or other data shall be at least five years from the date of marketing approval of the new pharmaceutical in the territory of the party etc.

These obligations are only postponed, not completely eliminated, showing that the parties that have signed the CPTPP are still open for the return of the United States. However, it can be said that the United States has lost the imposition of the past, but if the parties want the United States to return they may have to make concessions. Therefore, there should be flexibility in negotiating between parties with the United States.

Because CPTPP will be in effect 60 days after being approved by at least 6 of the 11 members. With the real benefits that CPTPP will bring to the member countries there are absolutely base to believe that this agreement will soon have enough 6 countries ratified to come into effect by the end of 2018.

Pham & Associates is a largest local intellectual property law firm in Vietnam. We provide counsel and representation in every area of patents, trademarks, copyrights, enforcement of intellectual property rights as well as their representation in arbitration and litigation proceedings etc. For further information about our organization and services, please visit our website: www.pham.com.vn