/ Chilean House of Representatives approves revised Trans-Pacific Parternship Agreement

April 23, 2019

Which are its IP implications?

On March 8, 2018, ministers from 11 countries signed in Santiago the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, also known as the TPP11). It is probably one of the most ambitious trade agreements, whose principal objective is to contribute to economic growth and create new opportunities for companies, workers, farmers and consumers of Australia, Brunei, Canada, Chile, Malaysia, Mexico, Japan, New Zealand, Peru, Singapore and Vietnam.

In order to promote innovation, creativity, facilitate the dissemination of information, knowledge, technology, culture and the arts, an exclusive chapter of intellectual property was developed, which had successive changes during the negotiation of the agreement. After much controversy, when United States left the pact, finally 11 intellectual property negotiations, mainly on copyright and patents, were suspended.

Of the most relevant matters of the copyright chapter, it was agreed between the parties to suspend the negotiations of several of its articles such as: term of protection for copyright and related rights; technological measures of protection; information on rights management; protection of satellite signals encrypted cable program carriers; legal resources and limitations.

The original text on trademarks was not modified and the most relevant matters are:

  • Types of signs registrable as trademarks: states parties may not condition that signs be visually perceivable in order to be registered, adding that states should make their best efforts to register olfactory marks.
  • Well-known marks: it is established that no state may require as a condition to establish that a mark is well known that the same has been registered in the territory of the party, or other jurisdiction.

Another of the most controversial aspects that will surely be the subject of an extensive debate among the experts, relates to the obligation that the States Parties will have to adhere to, either the Madrid Protocol or the Singapore Treaty.

Regarding the patent chapter, the contracting states decided to suspend negotiations on the following topics:

  • patentable subject matter
  • adjustment of the duration of the patent due to unreasonable delays by the granting authority
  • adjustment of the term of the patent due to unreasonable delays
  • protection of test data or other undisclosed data
  • protection new biological matter.

Regarding the measures related to the commercialization of certain pharmaceutical products (linkage), it is established that only under judicial order, and while the period of patent protection is pending, will the authority abstain from granting sanitary permits for generic pharmaceutical products.

Finally, one of the great novelties of the text refers to UPOV91 (International Convention for the Protection of New Varieties of Plants) since under Article 18.7, the Contracting States undertake to ratify or accede to UPOV91 by the date the CPTPP enters into force.

Santiago Ortúzar