TPP Leaks Shows US Stands Firm That Companies Should Be Free To Abuse Patents & Copyrights

from the go-home-ustr,-you're-drunk dept

Last week, as you might have heard, negotiators on the Trans Pacific Partnership (TPP) agreement gathered in Maui to try to finalize the agreement. Many believed that negotiators would more or less finish things up in that meeting. Earlier reports had suggested that everyone was "weeks away" from finishing, and many had said that the only thing holding back a final agreement was fast track authority (officially "trade promotion authority") from the US government to make sure that the USTR could negotiate an agreement without further interference from Congress. And, as you'll recall, Congress voted in favor of fast track after a long fight.

However, a funny thing happened in Maui: they didn't reach a final agreement. And it doesn't sound like negotiators are really that close either -- leading many to wonder if the TPP may be running out of time.

Either way, the good folks over at KEI have now started releasing a leaked copy of the "intellectual property chapter" as it stood on May 11th (i.e., the latest draft prior to last week's meeting). The IP chapter had leaked in the past, but only an older version. KEI called out how the US's proposals in the TPP are horrible:
The May 11, 2015, text includes country positions, and reveals extensive disagreements among parties, as well as the isolation of the United States as the country that continues to be the most aggressive supporter of expanded intellectual property rights for drug companies, publishers and other companies.

The proposals contained in the TPP will harm consumers and in some cases block innovation. In countless ways, the Obama Administration has sought to expand and extend drug monopolies and raise drug prices. The astonishing collection of proposals pandering to big drug companies make more difficult the task of ensuring access to drugs for the treatment of cancer and other diseases and conditions.

The widely reported dispute over the number of years of protection for biologic drug test data is only one of dozens of measures that significantly expand the power of big drug companies to charge high prices. Taken together these provisions will take the public down a road of more and more rationing of medicines, and less and less equality of access. It could have and still can be different. Rather than focusing on more intellectual property rights for drug companies, and a death-inducing spiral of higher prices and access barriers, the trade agreement could seek new norms to expand the funding of medical R&D as a public good, an area where the United States has an admirable track record, such as the public funding of research at the NIH and other federal agencies. Many people reading the provisions released today will appreciate how misguided and wrong are the USTR’s values and negotiating objectives.
Looking through the documents, you can see some real ridiculous and aggressive positions by the US on intellectual property. In particular, the US seems to push back against any attempt by other negotiating countries to allow for the punishment of those who abuse patents or copyrights. Every time the issue comes up, many other countries are on board, but the US (and sometimes Japan) is against. The discussion below is about the parts of the IP chapter that KEI released yesterday. Just as I was finishing up this post, it released the other sections as well, but we'll save those for another post.

For example, there is one proposal put forth by Australia, arguing that countries should be able to "cancel, revoke or nullfy" a patent if "the patent is used in a manner determined to be anti-competitive, or abusive, in a judicial or administrative proceeding...." This actually seems like a pretty good idea. And, basically all of the countries agree... except for the US and Japan.
Similarly, the US and Japan again appear to be in favor of patent trolling later in the document, opposing a provision that appears to allow countries to pass anti-trolling legislation:
Those are on the patent side. Well, how about copyright? Here, even Japan supports a plan that would allow courts to order those who abuse takedown provisions to pay up against those they unfairly targeted. But the US opposes it:
One other thing that caught my eye. Throughout the enforcement part, other countries repeatedly propose the use of the word "predominantly" when it comes to things like destroying equipment used in the creation of infringing works. That is, there are proposals like "judicial authorities shall have the authority to order the forfeiture or destruction of materials and implements that have been predominantly used in the creation of pirated goods or counterfeit trademark goods." The US repeatedly asks for the word "predominantly" to be removed from such sentences. In other words, while other countries recognize that you shouldn't just go around destroying computers that maybe incidentally were used to infringe, the US wants to retain such a right.

I'm sure more questions will be raised as people have more time to go through these documents, but for now, it appears that the US is still pushing for extremist copyright and patent policies and working hard to protect those who deliberately abuse such tools. It's fairly incredible how the USTR wants to deliberately support those who admittedly abuse those laws for anti-competitive purposes. Wouldn't you think the USTR should be encouraging blocking such abuses? I guess when your main advisors have a long history of abusing the laws, you don't think such abuse is that bad...

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Filed Under: abuse, copyright, enforcement, ip chapter, leak, patents, tpp, us

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  1. identicon
    Soichi Ogou, 6 Aug 2015 @ 8:09pm

    no need to invalidate a patent to stop patent abuse in Japan

    When Japanese court finds that a plaintiff abuses its patent right, the court does not need to invalidate the patent, but simply dismisses the plaintiff's claim based on a provision of the Civil Code, Article 1 (3), that no abuse of rights is permitted. In fact, the court applied the provision in a patent litigation in which the plaintiff's petition for temporal injunction was deemed as abusive. This is one reason why the patent troll is not a big problem in Japan. Another reason is because our court tends to award only a fraction of damage claimed by the plaintiff, considering the contribution of the patented technology in the lost profit of the plaintiff's sales by the competition with the defendant's product. So, a non-practicing entity cannot make money in Japanese patent system!

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