FTAs

'How Trade Deals Extend the Frontiers of International Patent Law' (CIGI Papers No. 199 — November 2018) by Jean-Frédéric Morin and Dimitri Thériault for the Centre for International Governance Innovation comments 

Bilateral and regional trade deals frequently include patent provisions that go beyond the minimum requirement of the multilateral Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). They extend the scope of patentability and provide additional rights to patent holders. This paper systematically maps these “TRIPS-plus” agreements. Exploiting a new data set, 52 TRIPS-plus agreements are found to have been concluded between 1990 and 2017. The major proponents of these TRIPS-plus agreements on patents are the United States, followed by the European Union and the European Free Trade Association. Other technology-rich countries, such as Japan and Korea, have surprisingly few TRIPSplus provisions on patent protection in their trade agreements. Few South-South trade agreements include TRIPS-plus provisions, but some include TRIPS-extra provisions on genetic resources and traditional knowledge. Having a clear picture of these TRIPS-plus agreements is essential as they can have important social and economic consequences, including for the development of innovations and access to technologies.

The authors note

This paper is one of the first attempts to systematically map key patent provisions in bilateral and regional preferential trade agreements (PTAs). Some of these provisions have important policy implications, including for the development of innovations and access to technologies. This paper shows their historical evolution and their geographical distribution. 

The available literature has already reported that some PTAs offer a level of patent protection that goes beyond the minimum requirements of TRIPS. However, several questions still need more research and analysis. In particular, the number and scope of TRIPS-plus agreements are uncertain. It is also unclear if their conclusion is more frequent today than it was a decade ago. As well, the practices of several countries remain undocumented, beyond some well-known advocates and opponents of TRIPS-plus agreements. 

This paper fills these gaps by relying on a recent data set of TRIPS-plus agreements (the T+TPA data set) introduced by Jean-Frédéric Morin and Jenny Surbeck. This data set is based on an exhaustive collection of more than 600 PTAs concluded between 1947 and 2017. Among these PTAs, Morin and Surbeck identified 52 PTAs with significant TRIPS-plus provisions on patents. 

The rest of this paper is divided into seven short sections. The first section describes the current state of multilateral negotiations over patent law. The second section describes eight categories of TRIPS-plus provisions on patents, while the third section presents their development over time. The next section identifies the key role played by the United States and by European countries in promoting TRIPS-plus agreements. The fifth section assesses the PTAs involving other technology-rich countries. The sixth section considers developing countries and their role in the diffusion of TRIPSplus provisions on patents. The last section focuses on provisions that are of particular interest for developing countries. The conclusion identifies directions for future policy-oriented research.

They conclude

The proliferation of TRIPS-plus and TRIPS-extra provisions in PTAs requires further research. At least three main areas of research would have clear added value for policy making. The first involves exploring the domestic consequences of TRIPS-plus provisions on patent protection. As yet, it is unclear how far these commitments reflect pre-existing legal standards or whether they require domestic reforms. In the latter case, it would be interesting to study if and how the reforms are being implemented. Developing countries that are compelled to implement TRIPS-plus obligations might take advantage of these legal reforms to include new exceptions and exclusions in their domestic legislation. Case studies might also be useful for investigating the social and economic consequences of implementing TRIPS-plus provisions. 

A second stream of research concerns the global and strategic consequences of TRIPS-plus provisions. These consequences would include processes such as regulatory competition across countries with different standards, norm diffusion driven by the desire to level the playing field and the reverberation from bilateral initiative to multilateral negotiations. The existing literature also tends to portray developed and developing countries as antagonistic actors in international patent law making. It is time to debunk this apparent oversimplification. The pro-patent posture of some developing countries, the nuanced policy of some high-income countries and the rise of emerging countries raise new questions that should be explored. 

A third avenue for future research concerns the potential alternative to existing TRIPS-plus provisions on patents. The current debate on international patent protection has focused on the flexibilities already provided in the TRIPS Agreement and on TRIPS-plus provisions. However, the example of TRIPS-extra provisions on TK and GRs shows that trade negotiators have the capacity to be creative and think outside the TRIPS box. Nothing precludes trade negotiators from addressing issues such as licensing pools, open science and scientific collaboration in their future PTAs. Provisions on these issues might actually do more for technological innovation than TRIPS-plus provisions on patents.