This is a quick note about one of the items in this year’s Special 301 Report, released by USTR this morning. The report attacks the recent Indian Novartis ruling in unusually direct language. The ruling upheld the denial of a patent on Glivec for failing to meet patentability requirements under Section 3(d) of the Indian Patents Act, (a longer explanation is here). The Special 301 report has this to say on the matter:
Today the U.S. Trade Representative issued a Federal Register Notice seeking comments on the upcoming trade agreement negotiations with the EU. The notice also announces that USTR will hold hearings on May 29-30 on “specific issues pertaining to the proposed negotiations.” The deadline for submitting written comments for the record, or requests to testify, is May 10. The Trade Act requires the executive branch, once it has announced its intention to negotiate a trade agreement, to “afford interested persons an opportunity to present their views regarding any matter relevant to the proposed agreement.”
Last month, the U.S. Trade Representative’s Trade Policy Report raised some eyebrows when it scolded Canada for not meeting its ACTA “obligations,” despite the fact that the Agreement is not in effect. (See for instance, Michael Geist’s blog quoting the report). The Trade Policy Report also noted that the U.S. is “working with Japan and other negotiating parties to bring the ACTA into force.”
Today USTR published another one of its annual reports, the National Trade Estimate (NTE) Report on Foreign Trade Barriers, which continues to discuss ACTA as a trade agreement that is moving forward.
Yesterday the Washington International Trade Association (WITA) held a panel on “21st Century Issues” in the Trans Pacific Partnership negotiations, which featured speakers on e-commerce/telecommunications, SOEs, regulatory coherence, and intellectual property.
According to an account of the discussion on ustr.gov, IP negotiator Probir Mehta “stressed that the U.S. is pushing for binding commitments from TPP partners so that they also achieve a balance in their copyright systems in providing exceptions and limitations for scholarship, criticism, news reporting, research and other legitimate purposes — as in the United States.” During the Q&A, Mehta “reminded listeners that consistency with U.S. law means that the United States also wants to see reflected the wealth of exceptions and limitations that provide great benefits to American consumers, scholars, writers, artists, and others.”
Sen. Max Baucus (Chairman of the Senate Finance Committee) and Sen. Orin Hatch (the Committee’s Ranking Minority Member) wrote Acting U.S. Trade Representative Demetrios Marantis on March 22 asking for “comprehensive, strong, binding and enforceable” intellectual property protections in the Trans Pacific Partnership. Specifically, the letter from Sens. Baucus and Hatch asks that USTR seek “commitments from our trading partners that reflect the level of protection under U.S. law, for example 12 years of regulatory data protection for biologic pharmaceuticals.”
Yesterday the Interagency Special 301 Committee chaired by the US Trade Representative held its annual public hearing. An earlier blog described the government testimony – this one describes the comments from industry groups and civil society.
Joan McGivern testified for American Society of Composers, Authors and Publishers (ASCAP), a membership organization with over 450,000 members, mostly individuals whose livelihoods depend on making money from music. She told the panel their assistance is needed by the membership to “collect their paychecks.”
This morning the Interagency Special 301 Committee chaired by the US Trade Representative held a public hearing as part of its annual review of foreign countries that “deny adequate and effective protection of intellectual property rights” or that “deny fair and equitable market access” to American companies that rely on intellectual property protection. The Committee consists of officials from USTR, the Library of Congress, Immigration and Customs Enforcement, and the Departments of State, Commerce, DHHS, Treasury, labor and Agriculture.
The Committee will produce the 2013 Special 301 Report based on input from this hearing, written comments received earlier this month, and other less transparent consultations with governments and industry. At today’s hearing, the Committee heard testimony from five governments and eight civil society and industry representatives.
Inside U.S. Trade reports that USTR has begun an “internal review of the controversial pharmaceutical patent proposal that U.S. trade officials tabled” earlier in the TPP negotiations. However, USTR has also signaled new text will not be ready by the next round of negotiations in Singapore in March. The initial U.S. proposal centered around an “access window,” granting TRIPS plus protection to firms that introduced their products within a certain period of time. It was opposed by all of the other negotiators, and the original text was withdrawn.
On New Year’s Eve, the Office of the U.S. Trade Representative issued a Federal Register Notice announcing 2013′s Special 301 Review. This is the annual process in which an interagency committee led by USTR conducts a review “to identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.” The process ends with the publication of the Special 301 Report, which includes various countries on the “Watch List,” the “Priority Watch List,” or as “Priority Foreign Countries.” If a country is listed as a Priority Foreign Country, this can lead to formal sanctions (though the U.S.’s membership in the WTO complicates this).
Tobacco giant, Philip-Morris, brought actions this year under investor-State arbitration mechanisms in investment treaties to challenge laws limiting (in Uruguay) or prohibiting (in Australia) the display of its trademarks in tobacco packaging. This has caused the Australian government to take a strong stance against any investor-State arbitration provisions in free trade agreements (FTAs), including exemptions from the proposed investor-state settlement provisions of the Trans Pacific Partnership Agreement (TPP), currently being negotiated. However, a closer look reveals a broad collection of older treaties that do not contain exceptions in modern treaties that could have avoided this situation. As a multinational-enterprise, Philip-Morris has attempted to evade these exceptions by going through subsidiaries to bring claims under more favorable treaties. This reveals that Australia’s new stance against investor-State arbitration may do nothing to prevent similar claims being brought in the future.
The success of the Model Bilateral Investment Treaty (BIT) process in advancing transparency in the investment policy-making at the international level provides a practical and achievable framework for other areas on trade. Though far from perfect, the Model BIT has improved transparency for the highly controversial area of investment, while still allowing the US to successfully negotiate a multitude of BITs and investment chapters.
Because trade policies involving intellectual property rights (IPR) are also very controversial, the Model BIT framework could be used to create model IPR Agreements and chapters to increase the legitimacy of international policy making in this area.
On Tuesday, July 25, Chief TPP negotiator Barbara Weisel briefed civil society on the state of the negotiations. The briefing covered all areas of the negotiations (not just IPR). Weisel told the civil society audience that negotiators made progress in many areas at the San Diego round, but intellectual property and ecommerce were two areas where they “still have a way to go.”
In the coming months, trade officials will hold side meetings at the ASEAN conference, followed by the APEC conference. Also USTR’s intellectual property negotiators will travel to Malaysia and other countries to discuss intellectual property and health.