Will RCEP Redefine Norms Related to Pre-grant Opposition and Experimental Use Exceptions in International Patent Law?

Abstract

Since the signing of the Agreement on Trade Related Intellectual Property (TRIPS) in 1994 as a part of the WTO Agreement, patent law has become increasingly international. For most part, TRIPS was perceived as leaning heavily in favour of the rights of the patentees although there are many who argue that TRIPS represents a fair bargain between developed and developing countries. In contrast, the limitations and exceptions to the patentee’s rights tend to be couched in language that is more general than specific and is always permissive rather than mandatory. Over time as multilateral trade deals failed to make headway, developed countries began pushing bilateral trade deals with a TRIPS-plus agenda. In the last decade, the focus has moved away from bilateral deals to regional deals. The most prominent amongst the new trade deals, are the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Regional Comprehensive Economic Partnership (RCEP). Given that RCEP is one of the first big trade deals to be negotiated without the participation of either the US or the EU, it will be interesting to observe the direction of this new treaty. From the leaked texts of treaty negotiations, there is evidence to suggest that RCEP will deviate significantly from existing international patent law norms on limitations, exceptions and safeguards. This chapter looks at two main issues: pre-grant opposition and the experimental use exception and the manner in which the RCEP negotiations approached this issue in contrast to the CTPP approach.