Sunday, December 01, 2013

TPP and Withdrawn Proposals of the US in the negotiation of the US-Korea FTA

The followings were demanded by the U.S. negotiators but eventually withdrawn during the negotiation of FTA with South Korea.
  • Patent term extension due to an approval delay: The US demanded a patent term extension to compensate delay of a marketing approval process in “another” Party.
  • Recognition of patent term extension: When a Party introduces a system in which a patent is registered on the basis of a substantial patent examination conducted by another Party, the extended patent term provided by the another Party is also recognized in the Party.
  • Patentable subject matter: The US demanded to include “diagnostic, therapeutic, and surgical methods for the treatment of humans or animals for the subject matter of patent (See Article QQ.E.1:3(b) of the leaked TPP IP Chapter).
  • Restrictions to the grounds for issuing a compulsory license of the patent invention: The US demanded an unauthorized use of patented invention be permitted only to remedy anticompetitive practices, for public non-commercial use or national emergency or extreme urgency.
  • Patent term extension due to a granting delay: For determining an unreasonable delay in the granting of a patent, the initial demand of the US was “two years” after a request for examination of the application has been made. In the final FTA text, it is “three years.” (Compare “two years” in Article QQ.E.XX (before QQ.E.13) of the leaked TPP IP Chapter and “three years” in Article 18.8:6(a) of the US-Korea FTA (http://www.ustr.gov/sites/default/files/uploads/agreements/fta/korus/asset_upload_file273_12717.pdf)
  • Scope of right of trademark: The US demanded to broaden the scope of trademark right to cover “related goods or services.” (it’s not clear from the negotiators’ notes but I guess this is not only for the well-known mark.)
  • Triple damages: See Article QQ.H.4.Y US' proposal of "up to theree times the amount of the injury found or assessed." The US also demanded additional damages ("injury to the right holder" plus "profits of infringer")
  • Prohibition of parallel importation of copyrighted work: See Article QQ.G.3 of the TPP IP Chapter.