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US patent moves are 'profoundly bad' in leaked TPP treaty

US patent moves are 'profoundly bad' in leaked TPP treaty


In new agreement, Obama sides with locked phones and Big Pharma

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obama rousseff (whitehouse)
obama rousseff (whitehouse)

The year's most controversial secret treaty just became very, very public. WikiLeaks has posted a full copy of the Trans-Pacific Partnership proposals from this August, revealing many provisions that have only been seen by a small group of lobbyists and heads of state. Nothing in the text has been definitively agreed to, but it offers a rare look into the state of a treaty that could lock in a broad range of rules about information access, patents, and consumer hardware.

"Profoundly bad for innovation."

Critics have wasted no time in attacking the treaty, with IP reform group Knowledge Ecology International calling it "bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation." Many of the criticisms focus on the treaty's "enforcement" section, which includes language that critics say mirrors similar provisions from America's controversial SOPA and ACTA bills. That includes provisions that would extend copyright to temporary copies of media, and others that place the burden of enforcement specifically on local ISPs, which critics say would further establish ISPs as a de facto copyright police. Other provisions would increase the software controls on consumer hardware. "The anti-circumvention provisions seem to cement the worst parts of the anti-phone-unlocking law that we saw this summer," says Matt Wood, policy director at Free Press. "We can't change the US law if we're locked into these international agreements."

Beyond the IP provisions, many of the battles see the US alone fighting for stronger patent measures on pharmaceuticals, while other countries work for less restrictive terms and policies. One US proposal would delay the market entry of generic drugs if the patent or marketing campaign had met with "an unreasonable delay" from the approval process. Canada, New Zealand, and Japan are opposing the provision, seeing it as a simple ploy by pharmaceutical companies to extend their patents. Another US proposal would offer the companies "data exclusivity," preventing regulators from using established data to register generic medicines, further delaying the entry of generic alternatives to patented drugs.

One provision "shall make patents available for inventions for the following: plants and animals."

Other proposals go further than simply extending patent terms, seeking to expand the scope of the patent system overall. One particularly controversial passage, proposed by the US, would "make patents available for inventions for the following: plants and animals." A further line would allow patents on "diagnostic, therapeutic, and surgical methods for the treatment of humans or animals" — essentially a patent on medical procedures, something medical societies have consistently opposed.

Why were these documents secret?

There is some good news. These proposals are still just proposals, and having been met with widespread opposition from other nations, it's unclear if any of them will make it into the final agreement. The US has already withdrawn many of its most controversial proposals, including provisions for patents on "new forms of known substances" and the elimination of "pre-grant opposition" measures against patent abuse, both of which had drawn international criticism.

Still, many have taken the leak as an opportunity to question why the documents were secret in the first place. While many of the revelations could be seen as embarrassing to the US or other nations, they're hardly out of keeping with similar provisions in proposed legislation. At the same time, keeping the documents secret has fueled doubts about the legitimacy of the process itself. "Any state signing a binding international trade agreement without a vote of informed representatives and an open text is not a democracy," said OpenITP coder Eleanor Saitta in response to the latest leak. "I don't say that as a rhetorical position. It's not. It's a statement about the basic definition of democracy."