Tuesday, 02 October 2018 16:27

Intellectual Property Provisions of the USMCA, after NAFTA

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The United States-Mexico-Canada Agreement, which will take effect after being passed into law and signed by each country, is intended to replace the North American Free Trade Agreement, and includes a wide range of provisions. With respect to intellectual property, two notable provisions are Canada's agreement to increase the term of protection for both copyrights and "biologics" -- new pharmaceuticals derived from biological sources. 

Under current Canadian law, the term of copyright protection is based on the life of the author and lasts 50 years after the author's death. As part of the USMCA's provisions, Canada has agreed to bring its term of copyright protection into conformity with the U.S., which is based on the life of the author plus 70 years. The U.S. Trade Representative had recently announced that negotiations with Mexico resulted in a five-year extension (life of the author plus 75 years), but reportedly, Canada's commitment to extend the term for two decades will cement the U.S. term as it stands, at the 70 year mark. 

While "biologics" are not per se excluded from patent protection, both the U.S. and Canada have relatively complex supplemental protections for test and other data associated with biologic development. Canada has agreed to an additional two-years of this supplemental protection, for a total protection term of ten years from the date of first marketing approval of the biologic product. 

 

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W. John Eagan

Mr. Eagan earned his bachelor’s degree in Mechanical Engineering from Lehigh University and his law degree, with honors from the University of Miami. While at the University of Miami he served as the Inter-American Citator and an Articles and Comments Editor for the Inter-American Law Review. Mr. Eagan is admitted to practice law in the State of Florida and concentrates his practice in Intellectual Property litigation.