The TPPA Dream: Is it over?

By Joel Cheong

While the whole wide world was still reeling from the news of Brexit and Brangelexit (Seriously, who comes up with terms like these?), the news of Donald Trump edging against fellow presidential candidate Hillary Clinton to become the next US president may have overloaded the incredulity meter of most common folks.

As those darn millennials burned dumpsters in a fit of entitled rage and non-Americans complained about how the new President-elect would make a poor leader in a country they don’t even reside in, one wonders about the ramifications of Trump’s victory. Will we see the construction of the Great Wall of Mexico? Will Americans really attempt to cross the Canadian-American border illegally, only to be stopped by Canadian border patrol officers riding on caribous? Is the US going to ratify the Tran-Pacific Partnership Agreement?

That last question is somewhat pertinent to parties on the other side of the Pacific Ocean, as the agreement was one that took almost a decade’s worth of clandestine negotiations and is at the endgame. Trump is a known opponent of the TPPA, judging from his promise to cancel or re-negotiate trade agreements where America appears to be at the losing end. Seeing as there is little to no chance that the TPPA will be ratified by the US government in the lame-duck session before Trump is sworn in, the Malaysian government’s stance right now is to “wait and see” and to negotiate bilateral agreements with other TPPA parties if the agreement does fall through.

To recall, the TPPA promised many good things, chiefly among them being lowered barriers to trade among the parties of the agreement. What this would translate into in practical terms would be that potentially, brand spanking new Jeep Wranglers would become affordable for the common Malaysian salarymen like this author and good folks in the land of the free would be able to enjoy honest-to-goodness Nasi Lemak with authentic ingredients from Bolehland without the Michelin-star gourmet price tag.

The TPPA would have also brought about many progressive changes to the Malaysian Intellectual Property legislation, as Chapter 18 of the TPPA has set certain timelines for these changes to be implemented. We briefly look at some of them below:

Patents

Under the TPPA, member countries such as Malaysia will be required to provide protection of confidential information which are submitted for regulatory approval of pharmaceutical products. This protection includes the prevention of third parties from marketing such pharmaceutical products which are pending regulatory approval.

If there is an unreasonable delay in allowing a patent application 3 years after substantive examination of the application has been requested, or 5 years after the date of filing the patent application, whichever is later, member countries have to provide patent term adjustments to compensate the applicant for the delay. Additionally, adjustment of the patent term must be provided for the delay in waiting for a pharmaceutical product to obtain regulatory approval.

Under the TPPA, Malaysia will have to accede to or ratify the Budapest Treaty, which requires member states to recognize the deposit of a microorganism in any international deposit authority. The Budapest Treaty simplifies applications for patents relating to microorganisms where a deposit of a microorganism sample is required for the purpose of filing a patent application, as there is the no need to deposit such samples in each individual country. After making a deposit with an international deposit authority, the applicant need only make reference to the deposit in his/her patent application in that individual country. Thus, the scenario where an inventor inadvertently causes a global zombie pandemic due to vials containing his virulent microorganism for use in a cure of a neurodegenerative disease breaking en route to various patent offices around the world could be averted.

Trademarks

Malaysia will also have to accede to or ratify the Madrid Protocol, which is an international system for registration of trademarks where an applicant who has filed a trademark application or owns a registered trademark in his/her home country may then seek trademark registration elsewhere through a single application filed at the World Intellectual Property Office (WIPO). The application is then formally examined at international level and then substantively in countries where trademark registration is sought.

In addition to the Madrid Protocol, Malaysia will also need to accede to or ratify the Singapore Treaty which provides a framework for trademark registration procedures. Also, member states should allow for registration of non-traditional trademarks, which are trademarks not expressed by text or graphics. Examples of non-traditional marks include signature sounds, scents or colours such as the Tiffany Blue colour of Tiffany & Co.’s jewellery boxes, or Intel’s signature chime.

Member states will also be required to take measures to prevent trafficking of pirated or counterfeit goods or goods with confusingly similar trademarks. Some of these border measures include withholding products in transit which are suspected to be counterfeit or have confusingly similar trademarks from being exported or released into free circulation.

Under the TPPA, Malaysia will have to extend the duration of copyright protection from during the life of the author up to 50 years after the author’s death to during the life of the author up to 70 years after the author’s death. So, if this author wrote this article and died tragically on 31 December 2020 after heroically rescuing a damsel in distress from ne’er-do-wells (or more likely choking on a chunk of dry-aged medium-rare grass-fed angus ribeye steak), then the duration of the copyright protection of this article under the TPPA would be up to 31 December 2090.

Additionally, civil remedies are to be provided for persons who hold an interest in an encrypted program-carrying satellite signal or its content and is affected by unscrupulous persons who create or utilize systems or devices to decode, receive or broadcast such signals illegally. This basically means that a satellite TV broadcast company can seek remedies against someone with a doohickey that enables him to enjoy free access to all episodes of season 6 of Game of Thrones which is only available to premium-paying subscribers.

Since the above changes are tied to the ratification of the TPPA, it does not appear likely that they will occur soon, with Mr Trump poised to ripping the TPPA to shreds like an underperforming apprentice as soon as he enters office. Unless, of course, the Malaysian IP legislature decides to implement these changes anyway for the benefit of their stakeholders.

While criticisms have been lobbed against the TPPA, such as the additional patent term for pharmaceuticals being said to result in the increase in price of medication and no barriers to entry would mean that small local businesses are in danger of being displaced by larger foreign entities, it cannot be disputed that trade agreements like the TPPA bring progress and growth to developing countries like Malaysia through creation of jobs locally and easier penetration of our local goods into foreign markets.

So, does one still dare to dream of the things that could be, or is the TPPA dream over? Maybe, just maybe, Trump will not scrap the TPPA and we will see positive changes to the Malaysian IP legislation in the near future. And maybe, just maybe, this author will one day be able to afford a brand spanking new Jeep Wrangler and Americans will get to enjoy real nasi lemak at the fraction of the price of a pumpkin spice latte.

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KASS

Communications at KASS International Sdn Bhd

KASS International is an established Intellectual Property Firm which offers a one-stop solution for IP matters in Malaysia, South East Asia, and worldwide.