Osler IP expert discusses the intellectual property provisions of TPP

Nathaniel Lipkus

Nov 17, 2015

In the November 12, 2015, edition of The Globe and Mail, Osler partner and IP expert Nathaniel Lipkus provides a commentary on the intellectual property provisions of the Trans-Pacific Partnership (TPP), a multilateral agreement covering 40 per cent of the global economy.

Nathaniel’s op-ed “The TPP’s IP provisions put Canada on level ground” touches on a number of topics and issues, including the controversy surrounding both the TPP’s IP provisions and the protection of IP itself. While the granting of IP rights can delay market competition for years, Nathaniel states that IP has played a foundational role in promoting investment in innovation: “And we owe it to our innovators and the public to strike the right balance between encouraging investment in innovation and enabling much-needed access to it.”

According to Nathaniel, there has been much anxiety expressed about whether TPP strikes that balance. “Initially, the United States drafted an alarmingly paternalistic IP chapter that would have exported U.S. IP laws to TPP countries without much room for interpretation or variation.” However, after Canada and other like-minded countries opposed U.S. demands, many IP issues were resolved by “striking what appears to be a quintessentially Canadian balance,” he states. 

Nathaniel outlines a number of changes Canada will have to make to its IP laws to implement TPP, which, in time, may come with unintended consequences. But the agreement also offers potential positives for Canadian innovators, as indicated in the following excerpt.

But, if anything, the IP chapter puts Canadian innovators on a level playing field with innovators throughout the TPP region, and the rules protecting their IP should become simpler and more harmonized. Given the complexity of the issues and the actors at the table, this is a good result.

The level playing field is a blessing and curse for any trade agreement. Can Canada’s innovators compete with Silicon Valley and elsewhere when IP rules are harmonized? This is a genuine question of industrial and innovation policy that should hold legislators’ attention. Winning the innovation game is widely viewed as the key to sustainable growth.

Agreement or no agreement, Canadian innovators would still be competing with other “like-minded, well-educated innovators around the world. TPP just puts this reality front of mind,” says Nathaniel. “Before embarking in post-TPP competition, our best and brightest innovators deserve the very best in infrastructural and policy support so they are positioned to win.”

Read the full op-ed “The TPP’s IP provisions put Canada on level ground

For more of Nathaniel’s insight on the TPP’s IP chapter, read the CTV News article “Scrutiny intensifies over TPP's rules on intellectual property

Nathaniel Lipkus is a partner in Osler’s Intellectual Property Group.