Workshop on "IP, FTAs and Sustainable Development" Highlights Continuing US Pressures on Trading Partners to Toughen IP

March 3, 2006
Mike Palmedo

On February 27 and 28, American University hosted a workshop on "IP, FTAs and Sustainable Development." Negotiators, advisors and other members of civil society attended; some from countries that have completed FTAs with the US and some from countries still in FTA negotiations. The stories told involved the US seeking ever high levels of intellectual property protection, which will soon result in higher prices for medicines and copyrighted goods for consumers.

Many of the speakers went through the technical details in the IP chapters of the various FTAs. Fred Abbott presented his paper outlining provisions in the FTAs that exceed the level of protection found in US intellectual property law. For instance, patent extensions to compensate for delays in the granting of patents and marketing approval are found in both domestic US law and in the FTAs. However, the American legislation includes limits to these extensions that are not found in the trade agreements. Similarly, "linkage" provisions forbidding national regulatory authorities from approving the sale of generic drugs while the originator's drug is under patent exist in both US law and the FTAs - but there are limits to this in the US system that are not included in our FTAs.

Fabiana Jorge, an advisory to both Chile and Colombia in their FTA negotiations, reminded the crowd that from the US point of view, these FTAs are all about money - specifically the movement of money from trading partners to American firms. She stressed the importance of writing good implementation legislation, and that pressures from the US to toughen IP laws do not end once the FTA is signed. In places where a provision could be interpreted one way or another, expect that the US will expect you to use the interpretation that would furthest strengthen IP protection. Others at the conference from nations in the FTA-implementation stage offered examples of this.

Hanan J. Sboul, a representative from the Jordanian pharmaceutical industry, reported that in their implementation debate, the U.S. sought data protection for new uses. She also said that the USTR asked Jordan to remove its bolar provision from its implementation law. (A bolar provision is a clause that allows a generic company to use the drug in tests needed to win marketing approval from a nation's regulatory authority while the drug is still under patent. It allows the generic firm to be ready to market its product as soon as the name-brand drug's patent expires.)

Luis Velasquez, representing Guatemalan generics, also reported that the U.S. is seeking data exclusivity for new uses. He stresses that Guatemala has had to change its law on data exclusivity multiple times since 2003. The U.S. also seeks "universality" of patents between the two countries - meaning that Guatemala should simply honor patents issued in the U.S. as if they had been filed in Guatemala.

No one at the conference argued that the IP chapters of the FTAs are good for the nations negotiating them with us - not even Jennifer Haverkamp, a former Assistant US Trade Representative.

The main message of the conference seemed to be that these IP agreements are deliberately meant to raise prices; and that once a country signs an FTA, the US pressure continues.