One of the few high-profile supporters of ‘the Donald’ was (notorious boxing promoter) Don King, so it will be interesting to see if the Donald likes the moniker and adopts it for his coronation, sorry inauguration. Either way, the US election has killed off any chance of the TPPA being ratified in anything like its current form.

Whether you liked the TPPA deal or not, its demise has a reasonably significant effect on the proposed amendments to New Zealand's intellectual property landscape – as a few amendments to regulatory instruments would have been required to reflect the TPPA principles, such as:

  1. Extending the term of copyright to life of the author plus 70 years (currently 50 years).
  2. Allowing for patent term extensions for delays in the application prosecution process and patent term extensions for pharmaceutical patents where the relevant product suffered regulatory approval delays.
  3. Adopting a geographical indicators regime for products - such as Manuka honey.
  4. Introducing ‘additional’ damages for trade mark infringement.
  5. Extending the data exclusivity period for agrichemicals to 10 years from the date marketing approval, it’s currently 5.
  6. Providing greater powers of seizure for NZ Customs.

The government's position was, broadly, that better access to markets outweighed the costs of the deal and would provide a net benefit to New Zealand. In an IP sense, some proposals like the patent extensions were definite costs as they would have hindered Pharmac's purchase of medicines and increased the time to market of generics. Some of the IP proposals however, like 3, 4 and 6 above, were likely to be good for New Zealand.

Australia is considerably less likely to be impacted (in an IP sense) by non-ratification of the TPPA, as its IP legislation was already generally consistent with the TPPA principles.

Although the TPPA grew out of the quadrilateral Trans-Pacific Strategy Economic Partnership agreement (NZ, SG, CL, BN) the US was one of the initial members and was central to the form of the agreed provisions. That deep involvement means it's uncertain if any of the TPPA will remain intact - it may continue without the US, but I suspect it will form the basis of various bi- or multi- lateral trade deals.