March 19, 2014

Happy Birthday, KORUS!

By Jasper MacSlarrow

While the Irish were celebrating the feast of St. Patrick last weekend, there was another anniversary that you may not have heard about:  the two year anniversary of the U.S.-Korea Free Trade Agreement (KORUS).

On March 15, 2012, KORUS, a landmark free trade agreement, officially entered into force, opening the U.S. market to countless trade and investment opportunities with Korea. This anniversary is notable not only because it falls so close to the feast of the Irish, but because of what the agreement itself contains. When ratified, the KORUS agreement included the highest standard of IP protections included in a free trade agreement (FTA) to date. Notably, KORUS included a life plus 70 years of copyright protection period, provisions which hold internet service providers (ISPS) liable for copyright infringement, and, for the first time, a provision to criminalize unauthorized camcording in theaters. In the world of pharmaceuticals, KORUS also included provisions for patent linkage, patent term extension, and five years of regulatory data protection (RDP) for new chemical entities. At the time of its conclusion, KORUS created a new model for IP chapters in future FTAs.

The anniversary of KORUS is particularly relevant now as the negotiators from twelve countries are working to come to an agreement on what could be the next gold-standard of FTAs: the Trans-Pacific Partnership (TPP). Just a few weeks ago, the negotiators met in Singapore to sort out the final details of the agreement. While we heard that much progress was made on the IP chapter, a number of critical issues remain unresolved, including the ISP provisions and the term of RDP for biologics. Industry strongly hopes that the TPP will hold true to the strong provisions on ISP liability included in KORUS and build upon the IP protection embodied in the agreement by including 12 years of RDP for biologics – which is U.S. law – in the final TPP agreement.

As the negotiations come to a close, the United States must accept nothing less than the highest standard of IP protection in order to both protect the innovators who develop the medicine and the music, and spur future research and development into the next life-saving medicine or chart topping-tune.

Do we need a little luck of the Irish to get the agreement across the finish line? Only time will tell. But industry remains optimistic that the Administration will recognize the need for including KORUS’ standard of IP protections in the TPP agreement, as well as U.S. law for biologics, as the negotiations come to a close. In the meantime, I will raise my Guinness to the anniversary of KORUS as a true model of IP protection, one which we urge to be included and enhanced in the TPP.

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