AIPLA Closed Meeting with JPAA April 9, 2013 IP Practice in Japan Committee Pre-Meeting Tokyo, Japan The Trans Pacific Partnership – Update on IP Aspects of TPP

Origins and History of the TPP  Negotiations on Sidelines of APEC Meetings since 2002  4-Nation Agreement Entered into Force May 2006  Brunei, Chile, New Zealand and Singapore  Goal of More Liberalized Trade and Investment in APEC  Covers goods, services, IP, Government procurement, etc.  7 Additional Nations Negotiating to Join – 40% world GDP  Australia, Canada, Malaysia, Mexico, Peru, US and Vietnam  Others Expressing Interest  Columbia, Japan, Laos, Philippines, South Korea, Taiwan and Thailand © AIPLA

The Potential Reach of the TPP © AIPLA

Current Over-arching Goals of the TPP  PROMOTE AN OPEN INTERNATIONAL SYSTEM  Tariffs – reduce to zero in 10 years  Trade Disputes – provide an effective measure to resolve  ENHANCE TRIPS  Reinforce and Further Develop TRIPS Policies  Expand to include "Other IP Issues"  Genetic resources and Traditional Knowledge  PRECLUDE REGIONAL DOMINATION BY ANY ONE COUNTRY  Focus on China © AIPLA

Current U.S. Strategic Goals  HARMONIZATION  Uniformity of Patent, Copyright, Trademark Laws  Consistency with Current US Laws  ADDRESS PIRACY and COUNTERFEITING  Provide a Uniform Policy in the Pacific Region  OPEN MARKETS  Agriculture, Public Works, Services, Insurance, Health  ENGAGE CHINA  Encircle China with IP laws and Favorable Trade Policies © AIPLA

U.S. Strategic Goals Statement  Reinforce and develop existing WTO/TRIPS "rights and obligations to ensure an effective and balanced approach to intellectual property rights among the TPP countries. Proposals are under discussion on many forms of intellectual property, including trademarks, geographical indications, copyright and related rights, patents, trade secrets, data required for the approval of certain regulated products, as well as intellectual property enforcement and genetic resources and traditional knowledge. TPP countries have agreed to reflect in the text a shared commitment to the Doha Declaration on TRIPS and Public Health." © AIPLA

Participation in FTA's by Japan  Historical reluctance by Japan to participate in FTA's  Most FTAs include reduction in tarrifs in up to 90% of markets  Japan's agricultural (rice-778%) and other markets highly protected  Participation in TPP as Observer under JDP PM Naoto Kan (2010)  First Proposal to join TPP by JDP PM Yoshihiko Noda (2011)  Opposition from many economic sectors  TPP requires reduction of tarrifs in 100% of markets © AIPLA

Participation in TPP by Japan 2013  Return of LDP to power in 2012  Three pillar approach to returning Japan to being a power in the Asia-Pacific region  Monitary policy, spending and structural reform  Request to Join TPP Negotiations by LDP PM Shinzo Abe (3/15/2013)  "This is our last chance. If we don't sieze it, Japan will be left out"  100 member task force set up  Discussion of "sanctuaries" and not "exceptions" to tarrif reduction  Japan recognizes current need to counterbalance China © AIPLA

Participation in TPP by Japan 2013  Role of US in Permitting Japan to Enter Negotiaions  Meeting with Obama in February 2013  Joint statement that "all goods would be subject to negotiation"  Bilateral sensitivities recognized relating to "certain agricultural products for Japan and certain manufactured goods for the United States" the final outcome will be determined in negotiation"  Recent bilateral discussions regarding automotive, insurance, etc.  Process for US Agreement  Obama Administration name Japan for negotiations,  90 day period for review by the Congress  First chance to participate would be September meeting © AIPLA

Participation in TPP by Japan 2013  Potential Opposition by New Zealand and Australia  Already late in the game  16 rounds of negotiation completed  17 th is in May (Peru) and will focus on the most challenging issues – IP, competition and environment  Japan cannot participate  18 th r round is in September 2013  Target for conclusion of the TPP negotiations is October 2013  Concern that Japan will enter, delay and eventually not sign  Concern that Japan will weaken strong gains © AIPLA

Impact of TPP on Japan if it Joins  HARMONIZATION  Significant Impact on Patents, Copyrights and Trademarks  OPEN MARKETS  Significant impact on Domestic Policies Related to Agriculture, Public Works, Services, Insurance, Health  Significant opposition by Democratic Party of Japan  CHINA  Improved access to Chinese and Asian markets and improved enforcement of IP against piracy © AIPLA

The TPP Agreement and IP Issues  2005 Agreement  High Level Treatment of IP Issues  Considered Protection of Traditional Knowledge  Addressed Exhaustion of IP Rights  Addressed Geographical Indications  Addressed TRIPS and General Cooperation  Draft 2011 Agreement  Detailed Treatment of IP Issues  Proposed Chapter by USTR © AIPLA

The TPP Agreement - US Proposal on IP Issues  2005 Agreement  High Level Treatment of IP Issues  Considered Protection of Traditional Knowledge  Addressed Exhaustion of IP Rights  Addressed Geographical Indications  Addressed TRIPS and General Cooperation  Draft 2011 Agreement – leaked version  Detailed Treatment of IP Issues  Proposed Chapter on IP by USTR (2/10/11)  Recent Drafts – unavailable to the public © AIPLA

The TPP Agreement - US Proposal on IP Issues  Required Accession to International IP Agreements - (PCT, Madrid, Budapest, Berne, UPOV, etc. (Art. 1)  PLT and Hague-Designs optional  Trademarks and Geographical Indications ( Art. 2)  Domain Names on the Internet (Art. 3)  Copyrights (Arts. 4-6)  Encryption and Protection (Art. 7)  Patents (Art. 8)  Enforcement and Customs (Arts )  Side letter re service providers © AIPLA

The TPP Agreement - US Proposal on Trademark Issues  Registrability  Marks not visually perceptible, sounds and smells are registrable  Certification marks and Geographical Indications are registrable as trademarks  Exclusive rights extend to identical or similar marks based on likelihood of confusion standard  Fair use is permitted  Well known marks – protection does not require registration, listing or prior recognition © AIPLA

The TPP Agreement - US Proposal on Copyright Issues  Exclusive rights given to rights holders to "authorize or prohibit" copies permanent or temporary (transitory?)  Reproductions, performances and importation of works  Parallel Imports authorized or prohibited (Kirtsaeng?)  Term is the US standard – life of author + 70 years  Berne (Art. 18) and TRIPS (Art. 14.6) shall apply  Technological Protection and Rights Management - extensive provisions included re circumvention  Regulation of Related Rights for broadcasting and communication to the public of performances © AIPLA

The TPP Agreement - US Proposal on Patent Issues  Patentable Subject Matter – any invention in all fields of technology if new, unobvious and useful  New forms and uses of known product  Plants and animals  Diagnostic, therapeutic or surgical methods for humans  Permitted exception – ordre public and morality  Post Grant Invalidity – only on grounds used for determining patentability  Pre-grant Oppositions – prohibited  Best Mode – not required © AIPLA

The TPP Agreement - US Proposal on Patent Issues  Novelty Exception – AIA exclusion from prior art of inventor derived publications within 12 months is required  Enablement, Written Description and Utility – specified as required for patentability  No Requirement for Best Mode  Mandatory Disclosure of File History – search, communications with applicant and patented/non- patented art cited by applicants © AIPLA

The TPP Agreement - US/Japan IP Issues  Changes to copyright term and formal complaint practice  Impact on manga and cosplay  Impact on parallel imports  Increased access to orphaned works by limiting damages  Disclosure requirements from ISPs  Enforcement of medical inventions  Treatment of non-technical inventions © AIPLA

The TPP Agreement - Remaining Controversy  Secrecy and Lack of Transparency  Open forum for 300 stakeholders   Obama Administration - no decision about allowing or opposing Japan, China and Mexico joining the TPP – opposition to Japan is focused on Automobilie industry © AIPLA

The TPP Agreement - US/Japan IP Issues DOMO ARIGATO GOZAIMASU © AIPLA