U.S.-Canada-Mexico Agreement promises to enhance IP protection in Canada

Oct 05 2018

An agreement in principle was reached on September 30, 2018 between the U.S. and Canada to replace NAFTA with the “United States – Mexico – Canada Agreement” (USMCA). The proposed agreement contains a number of provisions relating to intellectual property.  Some of these largely duplicate existing Canadian law or Canada’s obligations under other free trade agreements, but others could significantly change Canada’s IP laws. These include:

  • The term of copyright protection is increased from the present 50 years, to the life of author plus 70 years, or 75 years after the first authorized publication, performance, or phonogram.
  • A new “patent term adjustment” procedure is introduced to extend the term of a patent to compensate for “unreasonable delay” in issuance of a patent. An “unreasonable delay” is defined as a delay of more than five years from the date of filing of the application, or three years after a request for examination has been made, whichever is later. Certain exclusions are made in calculating the time, for example delays based on the applicant’s actions.
  • Patent term extensions will also be provided for pharmaceutical patents, based on “unreasonable or unnecessary delays” in the marketing approval process of a pharmaceutical product. The agreement does not provide details of the maximum term extension length, nor how this will be calculated. It remains to be seen whether this will extend the existing “certificate of supplementary protection” regime.
  • Data protection for new agricultural chemical products is introduced, with a term of at least 10 years.
  • New biological drugs are given a 10 year data protection term. The present term is eight years.

The agreement provides for delayed implementation of the various provisions, ranging from 2 to 5 years.

The USMCA must still be approved by the governments of the three countries. As a result, further amendments are possible. It is also possible for the agreement to be rejected outright, resulting in either continuing with NAFTA or, potentially, removal of all trade agreements between the U.S. and Canada. It is likely that additional details will be added to provide details of implementation, transitional provisions, and other aspects. Depending on the final terms of the agreement, many businesses will need to adjust their IP strategies to take full advantage of the significant new IP protections that will be offered in Canada or to avoid possible negative effects.

Details and updates on the USMCA will be added to our IP news section as they occur. For more information on NAFTA / USMCA and how it might affect your intellectual property, contact one of our professionals.

This article is for information purposes only and does not constitute legal or professional advice.

Author: Adrian Zahl (former partner)

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Tags: Copyright, NAFTA, USMCA