Intellectual Property Considerations in the New CPTPP & NAFTA Negotiations

By Randy Marusyk and Robert Di Battista, February ^13th, 2018

When the United States pulled out of trade negotiations for the Trans-Pacific Partnership agreement (the “TPP”), many considered the agreement to be dead. However, Canada and the other ten countries originally part of TPP negotiations have managed to breathe new life into the agreement.

At the World Economic forum in January 2018 in Davos, Canadian Prime Minister Trudeau announced that Canada and the other ten TPP countries had reached an agreement on a revised TPP,^[1] now renamed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the “CPTPP”). Member countries are working towards signing the agreement by early March 2018.^[2] While the new CPTPP will be different in a number of ways, of particular importance are the changes that were made to the agreement’s intellectual property (IP) provisions following the departure of the US from negotiations.

During the original TPP negotiations, the US had insisted for certain IP provisions related to patentable subject matter, patent term adjustment, copyright term of protection and technological protection measures (TPMs), among others, to be strengthened. At the time, many of these provisions were considered one-sided and quite controversial because they would require other TPP member countries to undergo extensive and expensive legislative reforms, including Canada. In agreeing to the reworked CPTPP, Canada has endorsed the suspension of a number of these IP provisions. A list outlining the suspended IP provisions can be found here.[3]

With this new CPTPP as a backdrop, it will be interesting to see how Canada will now approach the negotiation table with the US for a revised NAFTA. It is expected that the US will attempt to negotiate for IP provisions similar to those in the original TPP.[4] Whether Canada will push back against the US for IP provisions more in line with those in the new CPTPP, only time will tell.