Regional Comprehensive Economic Partnership Agreement: Some IP Provisions

The Regional Comprehensive Economic Partnership Agreement (RCEP) between Australia, Brunei, Burma (Myanmar), Cambodia, China, Indonesia, Japan, Laos, Malaysia, New Zealand, the Philippines, Singapore, South Korea, Thailand, and Vietnam recently became effective in the Philippines.  The U.S. Congressional Research Service has a short discussion paper concerning the treaty, here.  The RCEP has several interesting provisions concerning intellectual property.  The RCEP includes a provision concerning an experimental use exception to patents:

Article 11.40: Experimental Use of a Patent Without limiting Article 11.38 (Exceptions to Rights Conferred), each Party shall provide that any person may do an act that would otherwise infringe a patent if the act is done for experimental purposes [fn 34] relating to the subject matter of a patented invention.

[fn 34 provides: “For greater certainty, each Party may determine, consistent with Article 11.38 (Exceptions to Rights Conferred), what acts fall within the meaning of “experimental purposes”.”]

The RCEP also includes a provision concerning genetic resources, traditional knowledge and folklore.  According to WIPO Magazine, WIPO members have fast-tracked a treaty on the subject.  The RCEP provision states: 

SECTION G GENETIC RESOURCES, TRADITIONAL KNOWLEDGE, AND FOLKLORE[fn 41]

Article 11.53: Genetic Resources, Traditional Knowledge, and Folklore

1. Subject to its international obligations, each Party may establish appropriate measures[fn 42] to protect genetic resources, traditional knowledge, and folklore.

2. Where a Party has disclosure requirements relating to the source or origin of genetic resources [fn 43] as part of its patent system, that Party shall endeavour to make available its laws, regulations, and procedures with respect to such requirements, including on the internet where feasible, in such a manner as to enable interested persons and other Parties to become acquainted with them.

3. Each Party shall endeavour to pursue quality patent examination, which may include: (a) that when determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account; (b) an opportunity for third parties to cite, in writing, to the competent examining authority, prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources; and if applicable and appropriate, the use of databases or digital libraries which contain relevant information on traditional knowledge associated with genetic resources.

[fn. 41: “For greater certainty, this Section is without prejudice to the position of any Party on genetic resources, traditional knowledge, and folklore, including in any bilateral or multilateral negotiations through any fora, such as the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.”]

[fn. 42: “For greater certainty, the Parties understand that such “appropriate measures” are a matter for each Party to determine and may not necessarily involve its intellectual property system.”]

[fn. 43: “The Parties recognise the fact that some Parties also require, if applicable, in their patent systems, evidence of prior informed consent and access and benefit sharing for genetic resources and associated traditional knowledge.”]