What TPP could mean for NZ’s IP

by Hannah Norton10 Aug 2015
If the Trans-Pacific Partnership deal is signed, the 12-nation treaty will link 40% of the world’s economy and have significant economic implications.

But latest round of TPP negotiations ended in Hawaii at the start of this month without a consensus.

"Good progress was made… but a number of challenging issues remain, including intellectual property and market access for dairy products,” Trade Minister Tim Groser said.

“I am confident that we will reach an agreement that is in the best interests of New Zealand when negotiations resume.”

Two IP specialists spoke to NZLawyer about their perspective of the TPP.

AJ Park managing partner Damian Broadley said there had been conjecture that the deal may involve the reintroduction of extension of patent term for some pharmaceuticals.

“Before the extension of patent terms was removed from our legislation a decade or so ago, a handful of patent terms were extended.

“From a lawyer's point of view, they were good cases to be involved in as they were hard fought, and often appealed because of the dollars involved.  So the reintroduction of patent term extensions would be good for IP litigators although the volume of cases would be small.”

Simpson Grierson IP partner Earl Gray felt New Zealand was out of step with its major trading partners by not providing for pharmaceutical patent term extensions.

“I believe NZ has held this in reserve pending a free trade agreement with the United States. Such a change will mean that originator drugs protected by a NZ patent will be able to keep out generics for longer.”

Despite some noise from US lobby groups, New Zealand has strong and robust IP laws that are largely consistent with the US equivalents, Gray said.

“Although the economic rationale for this is questionable, it is possible New Zealand may be required by a TPP deal to extend the term of copyright for literary, artistic and musical works to the life of the author plus 70 years.”

He gave the example of New Zealand's laws freeing up parallel imports not being overly that dissimilar to how laws about grey goods operate in practice in the US.

“Apart from patent and possible copyright term extensions, I don't predict any need for significant change in New Zealand's IP laws to implement the TPP.”

Investor state dispute resolution procedures may lead to a greater range of potential challenges to controversial IP and other laws, such as plain packaging for tobacco products, Gray said.

“Sensibly, New Zealand is waiting to see the outcome of challenges at the World Trade Organisation to the Australian plain packaging legislation before implementing the law here.”

COMMENTS

  • by Rob Ord 11/08/2015 7:47:25 a.m.

    Patent term extensions should not be on a New Zealand TPP agenda where the patentor is already well-to-do. This issue isn't about law. It is about blatant corporate opportunism influencing law ... 70+ years indeed! Unless the patentor is a client, then just as in criminal law, lawyers-as-citizens can decry the greed, while lawyers-as-instructed do their jobs - of course. As one whose great grandfather's patents opened up the Canadian railway system, I hereby decry the greed implicit in even allowing such negotiations to be considered.

  • by Andrew Matthews 12/08/2015 6:22:04 p.m.

    I'm a big fan of the benefits of trade. There is an interesting discussion in the latest Economist on whether patents provide the benefits suggested – there is a strongly expressed view that the evidence does not support the alleged benefits (a potential exception being pharmaceuticals).