Scientific developments, such as biologics and personalized medicine, have created an entirely new category of pharmaceutical drugs that were not considered when the North American Free Trade Agreement (“NAFTA”) was adopted in 1994. However, the rise of biologics has increased demand for a reconfigured NAFTA, particularly with respect to Chapter 17, which outlines NAFTA’s robust intellectual property standards, as well as Chapter 11, which both lays out the framework for foreign investment under NAFTA and introduces a controversial mechanism referred to as the investor-state dispute settlement mechanism (“ISDS”). The intellectual property provisions of the original NAFTA should be revised to mirror the similar provisions of the Trans-Pacific Partnership (“TPP”) Agreement, which better accommodates new medical advances. However, despite criticism of their lack of transparency, the investment provisions of the original NAFTA are likely sufficient to grant medical patent-rights holders the investment protection that they seek because they strengthen transparency, which is ultimately good for business.
Biologics Under a New NAFTA: How TPP Fixed NAFTA's Intellectual Property Provisions But Not Its Investment Provisions,
Tex. A&M J. Prop. L.
Available at: https://scholarship.law.tamu.edu/journal-of-property-law/vol5/iss3/3