The UK and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

The CPTPP grew out of the Trans-Pacific Partnership (TPP) which did not enter into force after the US withdrew. The CPTPP was signed in March 2018 and came into force at the end of December 2018 after it was ratified by six countries. From 19 September 2021, the agreement will be in force in 8 countries (Australia, Canada, Japan, Mexico, New Zealand, Singapore, Vietnam and Peru).

 

The UK announced in June 2021 that it was launching negotiations to join CPTPP “to open new opportunities to this £9 trillion trade area”. The UK’s strategic approach document which sets out the UK’s case for joining this trade area may be found here.

 

The CPTPP is based on the provisions of the TPP with a number of exceptions/suspended provisions (see here). In the context of Intellectual Property, the TPP provides in Article 18.38 for a grace period (a period during which an invention can be publicly disclosed without affecting the validity of a subsequently filed patent application). This provision is not suspended in the CPTPP and so signatories to the CPTPP would be expected to provide for a 12 month grace period in their patent systems.

 

The UK of course is one of the 38 member states of the European Patent Convention. According to Article 54(2) EPC, inventions are assessed against “everything made available to the public …. before the date of filing of the European patent application”. In other words, the EPC does not provide for a grace period of the type* envisaged by the CPTPP.

 

It is also relevant to note that Article 2(2) EPC states that a European patent shall be subject to the same conditions as a national patent granted by a contracting state to the EPC.

 

There therefore appears to be some conflict between the provisions of the CPTPP and those of the EPC in respect of patent grace periods.

 

The UK has stated however in its strategic approach document that the UK’s accession to the CPTPP will not do anything that is “inconsistent with the UK’s objections under the European Patent Convention (EPC)” (see paragraph 2.8.2 of the strategic approach document).  The UK is hoping to conclude negotiations by the end of 2022.

 

More discussion about the possible impacts accession to the CPTPP could have on the UK patent sector can be found in this IPcopy blog post.

 

*it is noted that Article 55 EPC provides for certain non-prejudicial disclosures but these are “weak” grace period provisions compared to the CPTPP