The Trans-Pacific Partnership (TPP) has been released, but what does the 70 page chapter on intellectual property mean for Canada’s high tech industry? Economic theory aside, it is worth examining in detail the most important substantive changes that the TPP would bring for Canadian tech companies who have intellectual property assets. Broadly speaking, the TPP calls for two things: greater international cooperation and efficiency, and strengthening intellectual property rights across its 12 member states (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States of America and Vietnam). For the most part, however, this means conforming to American intellectual property law, with which Canadian law already has much in common.
- Each intellectual property office is to endeavor to share patent search results so as to minimize duplication of work where the same invention is submitted to multiple intellectual property offices. [18.14] This could mean reduced international prosecution fees in the future.
- Information relating to published patent applications and grants are to be made available. [18.45] This may result in each country adopting an online portal based on the American PAIR system which already performs this function. This could mean greater transparency and easier intelligence-gathering for companies filing patents.
- Inventors have a one year grace period after disclosing an invention without compromising their ability to apply for patent protection. [18.38] This is already the rule in Canada and the US, but is not widely employed internationally. This would make it easier for inventors to bring an invention to market with less worry about filing for patent protection before testing the waters.
- Patent terms can be extended for unreasonable delays at the patent office. [18.46] Unreasonable delay is defined as more than five years between filing of the patent and issuance of the patent, or three years after request for examination.
- Market exclusivity (extra protection irrespective of patent protection) is to be provided for certain products that must undergo lengthy government approval before being brought to market. This includes agricultural chemical products, which are afforded 10 years of exclusivity, [18.47] pharmaceuticals (3-5 years), [18.48] and biologics (5-8 years). [18.52]
- Each party is to adopt the Nice Agreement, which requires following standardized categories for listing the goods and services associated with a trade-mark registration. [18.25] Canada was already on track for adopting the Nice Agreement.
- Each intellectual property office is to allow for the registration of sounds as trade-marks, and is to endeavor to allow the registration of scents (without describing how). [18.18]
- Each party is to recognize the strong protection of well-known marks, and is to make it easier for a mark to be recognized as well-known (the mark need not be registered). [18.22] Being known as a well-known trade-mark expands the reach of a trade-mark into industries other than one the mainly being operated in.
- Term of copyright is extended from 50 years to 70 years plus life of the author. [18.63]
- Makes it an offence to circumvent Technological Protection Measures for copyright material (i.e., digital locks or TPM) and Rights Management Information (RMI). [18.68-18.69]
- Each party is to adopt the Hague Agreement, which includes an expedited system for registering product designs internationally. [18.56] Canada was already on track for adopting the Hague Agreement.