Simply wrong or wilfully misleading on IP

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Trade minister Steve Ciobo says is confident the remaining 11 countries will finalise the reworked Trans Pacific Partnership Agreement.

Mr Ciobo was speaking after Canadian prime minister Justin Trudeau was seen to snub the ten other TPP country leaders at the APEC leader's meeting in Vietnam.

Mr Trudeau, whose trade minister Philippe-Fran├žois Champagne was reported to have endorsed the core principles of the reworked TPP-11 at a meeting of trade ministers late last week including Mr Ciobo, said Canada was not ready to "close" the agreement.

He was accused of "sabotage" but defended his decision, saying it was never his intention to sign the agreement during the meeting in Vietnam. Mr Ciobo said Canadian concerns were focussed on the need for a "cultural exception" related to its broadcast policy and the need to allow for the French language.

Canada's position on the TPP-11 is further complicated by its ongoing negotiation of NAFTA, which also includes the US and Mexico, with potential implications for the country's large automotive industry.

The TPP-11 countries are understood to have 'frozen' but not scrapped its intellectual property provisions. The provisions, which include important outcomes on pharmaceutical patents, were pushed strongly by the US and will be used as a potential basis for that country's future return to the TPP.


Some Australian-based anti-free trade advocates have made outlandish claims in relation to the TPP provision on data exclusivity, claiming it would extend patents for biologics, even receiving some media coverage in relation to a claimed saving if current protections were scrapped.

It seems these groups, and the relevant media organisations, are either ignorant of the difference between patents and data exclusivity or are wilfully seeking to misrepresent and confuse the issue. Probably a combination of both. It also seems they fail to understand that, without current protections, no biologics will ever be launched in Australia. In that sense, they could get all the savings they want, at a huge cost to patients.

Their claimed saving of several hundred million dollars is based on simply removing IP protections from currently reimbursed biologic medicines, allowing biosimilars, and applying statutory price reductions. It is basically the equivalent of saying Australia could pay nothing for medicines if it just removed all IP protections and demanded them for free. Another word for their approach is advocacy, not research, and it should be treated as such. In that respect, this issue goes to the very heart of industry's existence in Australia.

Does anyone truly believe any Australian government would retrospectively remove existing protections for current patent holders? Setting aside the obvious risk of retaliatory actions by other countries under existing trade agreements, specifically against Australia's export industries, and the fact few if any biosimilars would be launched in such an environment, the sovereign risk implications for investment in this country are too vast to contemplate. Some advocates probably do not care.

Any attempt to substantially wind back current protections would also have enormous implications for this country's access to new medicines and stated commitment to supporting innovation and medical research. Yet, maybe for some, arguing against IP protections for pharmaceuticals is more important than ensuring Australians gain access to latest medical innovations.