Today’s leak of the Investor State Dispute Settlement (ISDS) chapter proposed for the Trans Pacific Partnership (TPP) agreement would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. The text contains the same provisions that are being used by Eli Lilly to challenge Canada’s invalidation of patent extensions for new uses of two medicines originally developed in the 1970s. The same language is also being used by Philip Morris to challenge Uruguay’s regulation of advertising on cigarette packages as an “expropriation” of their trademarks. But the TPP language goes farther. It includes a new footnote, not previously released as part of any other investment chapter and not included in the U.S. model investment text — clarifying that private expropriation actions can be brought to challenge “the cancellation or nullification of such [intellectual property] rights,” as well as “exceptions to such rights.”
Instead of combatting the ability to bring cases such as Eli Lilly’s, it invites them. Any time a national court – including in the U.S. – invalidates a wrongfully granted patent or other intellectual property right, the affected company could appeal that revocation to foreign arbitrators. The new language would also make clear that private companies are empowered by the treaty to challenge limitations and exceptions like the U.S. fair use doctrine, or individual applications of it. Adoption of this set of rules in the largest regional trade agreement of its kind would upset the international intellectual property legal system and should be subject to the most rigorous and open debate in every country where it is being considered.
A more extensive explanation of the issues raised in this statement will be published on infojustice.org later today.
-Sean Flynn, Associate Director, Program on Information Justice and Intellectual Property, American University Washington College of Law