KEI notes from the Ninth Round of TPPA negotiations

The ninth round of negotiations for the Trans-Pacific Partnership Agreement (TPPA) took place in Lima, Peru from 19-28 October 2011. Stakeholders were given the opportunity to present at the stakeholder platform on 23 October, attend the stakeholder briefing on 25 October and the reception on 25 October.

Intellectual Property

During this round of negotiations, leaked text on USTR's proposals tabled during the Chicago round (including controversial IP provisions such as patent term extensions, patent linkage and data exclusivity as well as pharmaceutical pricing and medical devices provisions contained in the transparency, regulatory coherence and technical barriers to trade chapters) emerged and were posted to Citizen's Trade Campaign's website.

The leaked text confirms that USTR's so-called "TEAM" approach will do little to improve access to medicines but, instead, delay entry of generic drugs into the market. USTR's proposal retreats from the compromises made in the May 10, 2007 agreement and the public health safeguards that are included are weaker than they should be. KEI's full analysis on the newly leaked text will be available shortly.

It is unfortunate that the public must depend on leaks as a source of information for proposals that will impact them. KEI has long objected to the policy of making negotiating text on intellectual property in trade agreements secret. These texts are secret only from the general public as the proposals are distributed to all parties in a negotiation and USTR uses a process of "cleared advisors" which permit representatives on trade advisory committees--most of whom represent private industry--to see the text. KEI has called upon Congress to intervene and require that such texts be made public as a general rule.

USTR's proposals are highly controversial and, it is our understanding, were not negotiated during this round. Although this text was on the agenda and discussed, the negotiating parties either did not have mandates from their capital to negotiate on these issues or wanted additional time to consider the impacts USTR's proposal will have. Several delegations noted that the intellectual property negotiations (as well as those on pharmaceutical pricing) were very tense. The focus of the negotiations was on the text USTR tabled in Chicago with very little attention on its prior patent proposals.

The New Zealand/Chile proposal reportedly do not contain any provisions for patent linkage and have a flat five year proposal for data protection of pharmaceutical products (with no extensions/additional years for new clinical information submitted) as well as agricultural products.

Although the intellectual property text has been consolidated, it is heavily bracketed. It seems as though New Zealand and Chile have one set of proposals with the US proposing another set. The provisions have been placed into the US framework (i.e. the same chapter headings of the US proposal with the NZ/Chile proposals largely sitting alongside the corresponding US text).

In addition to the controversial patent/pharmaceutical provisions, the more controversial copyright issues were also not resolved. The copyright issues that were reportedly unresolved include related rights, TPMs, digital rights, and digital enforcement.

Stakeholder Platform

Fewer stakeholders registered to make presentations at this round of TPPA negotiations than at the previous two rounds. The morning session focused on intellectual property and access to medicines issues with each presenter allotted 15 minutes. The leaked text was made available the day before the platform and some of the presentations took into account the new information.

KEI's presentation centered around data protection for pharmaceutical products, requirements under TRIPS and ethical concerns as related to the USTR proposal. KEI also discussed the Bolar exception and the use of compulsory licenses to override systems of exclusive rights in test data.

Other access to medicines presentations included Roberto Lopez (AIS/HAI Peru), Peter Maybarduk (Public Citizen), Sharon Treat (Maine State Legislature), Sean Flynn (American University). Edward Low from MTAAG+ in Malaysia also gave an excellent presentation and, as a person living with HIV, brought a human face to the problem of access to medicines. A number of copyright and public interest presentations were also made including those from Luis Villarroel (Innovarte), Daniel Alvarez (University of Chile) and Margot Kaminski (Yale Law School).

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Luis Villarroel of Innovarte at the Stakeholder Platform

The majority of the aforementioned presentations were given timeslots in the morning. I note that intellectual property negotiators from eight of the nine delegations were in attendance during these presentation: Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore and Vietnam. The United States was the only delegation without IP negotiators present in the earlier part of the morning, though Barbara Weisel and Probir Mehta (as well as other members of the US delegation) did attend in the late morning.

Stakeholder Briefing

At the stakeholder briefing, several questions regarding transparency were raised. The first question regarded the memorandum of understanding/negotiating guidelines signed by negotiating parties and whether the parties had discussed the release of the document since the Chicago round (where Barbara Weisel from USTR said that the nine countries would have to discuss whether that document could be made public). New Zealand responded by claiming that consultations have been happening at the capital and discussions have been difficult due to "legal issues" and that while he does not expect the release of the individual MOUs signed, he does expect that they will release a "generic form" of the document.

I note that KEI requested this document from Barbara Weisel who informed us that New Zealand was acting as the TPPA depository, implying that USTR did not have the document to release, and that she had forwarded the request to New Zealand. However, USTR certainly has a copy of the MOU in its possession evidenced by the fact that when it distributed its remaining IP text in Chicago, USTR redistributed the MOU to all negotiating parties.

Questions about the exact dates and locations for the Malaysia and Australia rounds were largely ignored. Peru stated that the questions cannot be answered until after the leaders' meeting in APEC in November.

In response to rumors regarding a June 2012 "deadline" to complete the agreement, Peru once again noted that the current round had not yet wrapped up and that instructions will need to come from country leaders after APEC. Chile added that they have no formal date in mind for completion of this agreement and are completely open as to timing.

Almost all text has been tabled at this point and any outstanding text is minimal. Peru tabled new text in Lima on horizontal issues, specifically related to development concerns on innovation and social responsibility.

With regard to the IP chapter, the US admitted that the text is heavily bracketed. The text has been consolidated, but because of the large number of brackets, it is expected that much time will be needed to work through the issues. Barbara Weisel noted that there is a lot of work left to be done on the IP chapter, though the same can be said about a few other chapters, as well.

Cultural diversity (such as the commitments contained in the UNESCO Diversity of Cultural Expression 2009) is being discussed and proposals on this subject have been made.

Japan has been the subject of heightened rumors to join the TPPA. The chief negotiators cautioned that it is a decision for Japan to make and the bilateral process of joining may take some time before a final decision is reached. Other than Japan, there have been no specific/formal requests for information on joining TPPA. However, the US noted that they have been approached by Canada and Philippines who have expressed a "strong interest." Other TPPA negotiating parties have also approached by these (and possibly other countries) about joining, but none have begun the formal process yet.

Whether there will be a release of the final text before signing is a matter that has not yet been discussed and the process may be different in each country, according to the domestic laws.

Other points of interest

As noted above, the exact dates and locations for the upcoming rounds have not been completely confirmed. However, we believe that the "abbreviated round" in Malaysia will take place from 5-9 December in Kuala Lumpur. Although this information has not yet been confirmed, the majority of delegations seem to believe that intellectual property will be one of the chapters addressed in the abbreviated round. With respect to intellectual property, there seems to be greater support in discussing copyright or the less controversial patent provisions and holding over the text USTR tabled in September for a full round. However, many other chapters will not be negotiated then due to the shortened round. The next full round is rumored to be in Australia around the first or second week of March, though more concrete details have not emerged.

Prior to the start of this negotiating round, over 80 groups and individuals signed letters calling for greater transparency, including the release of negotiating text and the memorandum of understanding/negotiating guidelines. In total, five letters were submitted to the trade ministers in the following countries: Australia, Malaysia, New Zealand, Peru, and United States. I distributed copies of the letters to the chief negotiators from each of these countries, and also copies of all five letters to the chief negotiator of Peru at the stakeholder briefing.

On 25 October, several Peruvian groups got together for an access to medicines demonstration outside the J.W. Marriott hotel in Miraflores, the negotiating venue. Several negotiators noticed the demonstration and appeared on the Marriott's fourth floor balcony to watch. This demonstration appeared on the local evening news.

USTR was very unhappy with the fact that its text was, once again, the subject of leaks. Some delegations reported that USTR complained about the leaks, and some delegations did not want to meet publicly with civil society because of the pressure they are feeling from the US.