October 1, 2018
After more than a year of negotiations, Canada, the United States and Mexico have struck a trade deal that will replace the North American Free Trade Agreement once fully ratified.
The United States-Mexico-Canada Agreement (“USMCA”) was finalized in the final hours before the midnight deadline for Canada to come on board. Had an agreement with Canada not been reached, Mexico and the United States were ready to go ahead with their own bilateral agreement.
The United States has published the text of the agreement online. While this text is still subject to legal review for accuracy, clarity and consistency, it provides insight into the details of the newly negotiated deal.
Here is what some of the changes to intellectual property rights outlined in Chapter 20 could mean for Canadians:
New biologic medicines will be afforded at least 10 years of data protection. This means that, for a given biologic medicine, less expensive subsequent-entry biologics (SEBs) will not be able to enter the market for at least 10 years. Currently, biologics are only afforded 8 years of data protection from competition in Canada. An increase in the period of data protection of biologic drugs may raise drug costs;
Trade secret protections (e.g., criminal penalties for unauthorized and wilful misappropriation of a trade secret);
Copyright protection will extend to at least 70 years following the death of the author (up from the previous 50 year term following the death of the author);
Patent term restoration for unreasonable patent office delays (a first in Canada); and
Continued use of Canada’s Notice and Notice regime to address online copyright infringement, despite pressure from the United States to adopt its “Notice and Takedown” regime.
The effects of the USMCA will remain uncertain until the agreement has been ratified by all three countries. The Goodmans IP Team will continue to provide updates regarding the implications of the USMCA over the coming weeks and months.
Author: Jaclyn Tilak