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Bipartisan Trade Policy Deal Has IP Implications, Says USTR

by Glen Shapiro, LawAndTax-News.com, New York

15 May 2007

A trade policy agreement reached by the Democrat-controlled Congress and the White House last week has been welcomed by the US Trade Representative, Susan Schwab.

Speaking on Thursday with regard to the deal, Ms Schwab observed that:

"The Administration and congressional leaders from both parties know that the sidelines is no place for the United States of America to be when it comes to international trade. Prosperity at home and economic development opportunities overseas depend on US leadership and engagement in the international market place."

"Today we have seized an historic opportunity to restore the bipartisan consensus on trade with a clear and reasonable path forward for congressional consideration of Free Trade Agreements with Peru, Colombia, Panama and Korea. The new trade policy template also opens the way for bipartisan work on Trade Promotion Authority. This will ensure the creation of new economic opportunities for American farmers, ranchers, manufacturers, service providers, more choices for consumers, and help guarantee that the benefits of trade extend to all people."

"I commend congressional leaders, House Ways and Means Committee Chairman Rangel and Congressman McCrery, Senate Finance Chairman Baucus and Sen. Grassley for their leadership in what has been a productive and honest series of negotiations."

Commenting with especial regard to the intellectual property implications of the agreement, the USTR announced last week that:

"The Administration’s agreement with the Congressional leadership preserves a strong overall level of protection for intellectual property in developing country free trade agreements, including the pending Peru, Colombia, and Panama agreements."

"Within this overall framework of strong intellectual property protection, the agreement reached with the Congressional leadership aims to incorporate certain additional flexibilities. These modifications are aimed at further ensuring that developing country free trade agreement partners are able to achieve the best possible balance between fostering innovation in, and promoting access to, life-saving medicines. The results are fully in line with this Administration’s long-standing trade policy objectives in the area of intellectual property."

"In particular, the agreement with the Congressional leadership entails the following elements related to intellectual property, medicines, and health (the first three would apply only to developing country partners):

  • Clarification that the period of protection for test data for pharmaceuticals in developing country FTA partners will, in some circumstances, not extend beyond the period that such protection is available for the same product in the United States, coupled with a provision that will encourage our partners to process marketing approval applications for innovative drugs in a timely manner;
  • A more flexible approach, for developing country partners, to restoring patent terms to compensate for processing delays. This flexibility is accompanied by new provisions stipulating that trading partners will make best efforts to process patent and marketing approval applications expeditiously;
  • More flexibility in terms of the types of procedures and remedies that developing country partners may implement to prevent the marketing of patent-infringing pharmaceutical products;
  • Clarification that FTA partners may implement exceptions to the rules for protecting test data if necessary to protect public health;
  • Integration within the intellectual property chapter of a recognition that nothing in the chapter affects the ability of our FTA partners to take necessary measures to protect public health by promoting access to medicines for all, and a statement affirming mutual commitment to the 2001 Doha Declaration on the TRIPS Agreement and Public Health."

Responding to the announcement on Thursday, Business Roundtable, an association of chief executive officers of leading US companies, applauded the agreement, suggesting that it will revitalize and reestablish bipartisan cooperation on trade policy initiatives.

“Bipartisan cooperation on trade is critical to developing the policies that will help Americans compete and win in the global economy,” argued Jim Owens, Chairman and CEO of Caterpillar Inc., and a co-chairman of the Business Roundtable’s International Trade and Investment Task Force.

Owens praised all parties involved in the effort to change the tone on trade policy in Washington.

“The new consensus between the Administration, Congress and the private sector will translate into trade policies that are good for business, consumers, workers and farmers,” he stated.

“Every major US competitor is moving forward with trade deals,” Owens added. “The bipartisan consensus from Washington sends a signal to the world that the US is not standing still on trade.”

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