TRIPs grants patent protection of 20 years from date of filing (TRIPs Article 33), a benchmark that RTIAs may extend in their IPRs chapters. Extending this term in any way means increasing the incentives for innovation, which is good, and increasing costs and stifling derivative innovation, which is bad. Each government will need to decide for itself where it judges the balance to be appropriate, but our recommendation from the perspective of fostering green innovation is that only those countries with strong innovative capacity should seek to extend patent terms past what is provided in TRIPs.
Option 1:No mention of term of protection, meaning TRIPS applies
This allows the requirements of TRIPS to prevail.
Examples
In a large number of FTAs concluded by the EU, China, India, Japan and others, the chapters on intellectual property/patents do not mention the term of protection.
How Commonly Used
Option 2:Simple restatement of the TRIPS provisions
This allows the requirements of TRIPS to prevail.
Examples
“The Parties affirm their existing rights and obligations under the TRIPS Agreement and other multilateral agreements relating to intellectual property to which both Parties are parties. Nothing in this Chapter shall derogate from existing rights and obligations that the Parties have under the TRIPS Agreement or other multilateral agreements relating to intellectual property to which both Parties are parties.” (Chile – Japan Strategic Economic Partnership, Chapter 13, Article 158.3.)
How Commonly Used
Option 3:Extending the term of patent protection. Term extension can be direct or indirect.
Examples of indirect are patent term restoration, or sui generis protection—granting of extended patent protection to compensate for time elapsed between application for and issuing of a patent (usually specific to pharmaceuticals).
Recommended only for those with strong domestic innovative capacity. For others, such formulations increase the strength of patent protection beyond a reasonable point of balance.
Examples
Sui generis protection as term extension:
“Each Party shall provide a period of sui generis protection in respect of a product that is protected by a basic patent in force at the request of the holder of the patent or his successor in title … [for a period equal to the period which elapsed between the date on which the application for the basic patent was filed and the date of the first marketing authorisation, reduced by a period of five years.” (CETA Article 20.27)
How Commonly Used