What is the Trade-Off: Are New Trade Deals Worth the Changes to Pharmaceutical Patents?
Marquette Intellectual Property Law Review
Volume 24
Issue 1
Article 5
Winter 2020
What is the Trade-Off: Are New Trade Deals Worth the Changes to
Pharmaceutical Patents?
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Part of the Intellectual Property Law Commons, International Trade Law Commons, Law and Politics
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Recommended Citation
Kaitlyn Carter, What is the Trade-Off: Are New Trade Deals Worth the Changes to Pharmaceutical
Patents?, 24 Marq. Intellectual Property L. Rev. 1 (2020)
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WHAT IS THE TRADE-OFF: ARE NEW TRADE
DEALS WORTH THE CHANGES TO
PHARMACEUTICAL PATENTS?
KAITLYN CARTER*
I. INTRODUCTION ............................................................................................. 53
II. PROMISES MADE ......................................................................................... 55
III. PROMISES IN PLACE? ................................................................................. 57
IV. HOW TO RECONCILE THE DISCONNECT BETWEEN PROMISES MADE AND
PROMISES KEPT? .................................................................................. 62
V. CONCLUSION ............................................................................................... 65
I. INTRODUCTION
Intellectual property provisions are standard when it comes to trade
agreements. 1 Trade agreements and intellectual property standards are
advanced together because intellectual property standards are said fair
competition and provide for adequate and effective protection and enforcement,
thus eliminating a major trade barrier. 2
During his presidential campaign, President Trump named fair trade deals
and pharmaceutical drug pricing, among others, as his priorities during his
presidency. 3 Initially, the President named intellectual property as one of the
driving forces behind his trade negotiations, focusing his concern on protecting
the intellectual property produced by the citizens of the United States from
foreign countries’ fraudulent behavior. 4 President Trump has also promised to
*J.D. Candidate, Class of 2020, Marquette University Law School. I would like to thank my parents
for their constant support during my time in law school.
1. See James M. Silbermann, The North American Free Trade Agreement’s Effect on
Pharmaceutical Patents: A bitter Pill to Swallow or a Therapeutic Solution?, 12 J. Contem. Health L.
& Pol’y 607, 608 (1996).
2. See Id.
3. See
President
Donald
Trump,
State
of
the
Union
Address,
https://www.govinfo.gov/content/pkg/DCPD-201800064/pdf/DCPD-201800064.pdf, (Jan. 30, 2018).
4. Executive Summary from Ambassador Robert E. Lighthizer, The President’s 2018 Trade
Policy
Agenda,
https://ustr.gov/sites/default/files/files/Press/Reports/2018/AR/2018%20Annual%20Report%20I.pdf
(Mar. 2018). [hereinafter The President’s 2018 Trade Policy Agenda}.
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MARQ. INTELL. PROP. L. REV.
[Vol. 24:1
lower pharmaceutical prices for Americans. In 2018 the United States spent an
estimated 335 billion on pharmaceutical drugs, this number is anticipated to
grow to 345.7 billion by the end of 2019 and 358.7 billion by the end of 2020.5
This level of spending makes the United States the top spender on
pharmaceuticals in the world. 6 Because of this, President Trump has made the
promise to lower the price of pharmaceutical spending. 7
Throughout his presidency, President Trump has sought to deliver on his
campaign promises, by drastically changing the United States’ presence in
numerous trade deals. 8 He has accomplished this through withdrawing from
current trade deals, renegotiating others, and forming new trade deals
altogether. 9 A major withdrawal came within the first day of his term when he
withdrew from the Trans-Pacific Partnership (TPP) agreement. 10 Another
notable change was the abandonment of the North American Free Trade
Agreement (NAFTA) and the negotiation of its replacement, the United StatesMexico-Canada Agreement (USMCA). 11
Given this change, President Trump has also played an outsized role in
changing intellectual property law since trade agreements may have a
subsidiary effect of changing substantive nature. 12 For example, the USMCA
included sixty-five pages of intellectual property provisions, that expanded
provisions previously included in agreements, such as TPP and NAFTA. 13
Indeed, it may be that President Trump’s intellectual property goals—such as
lower prescription drug prices—might be undermined by the ripple effects of
his agreement.
Section one of this Comment will analyze the promises President Trump
has made during his term, focusing on trade reform and pharmaceutical drug
prices. Section two of this Comment will demonstrate the disparity between
5. Prescription Drug Expenditure in the U.S. 1960-2019, SATISTA.COM (2019),
https://www.statista.com/statistics/184914/prescription-drug-expenditures-in-the-us-since-1960/.
6. National
Trends
in
Per
Capita
Pharmaceutical
Spending,
1980-2015,
COMMONWEALTHFUND.ORG,
(2015),
https://www.commonwealthfund.org/sites/default/files/documents/___media_files_publications_issu
e_brief_2017_oct_pdf_sarnak_paying_for_rx_exhibits.pdf.
7. State of the Union Address, supra note 3.
8. See President Donald Trump, President Trump’s First Weekly Address,
https://www.govinfo.gov/content/pkg/DCPD-201700078/pdf/DCPD-201700078.pdf, (Jan. 28, 2017).
9. The President’s 2018 Trade Policy Agenda, supra note 4.
10. President Donald Trump, President Trump’s First Weekly Address, supra note 6.
11. U.S-Mex.-Can. Agreement, §20, Proposed Draft, Nov. 30, 2018. [https://perma.cc/M3YZ974N].
12. See Marney L. Cheek, The Limits of Informal Regulatory Cooperation in International
Affairs: A Review of the Global Intellectual Property Regime, 33 Geo. Wash. Int’l L. Rev. 277, 283
(2001).
13. U.S-Mex.-Can. Agreement, §20, Dec. 13, 2019.
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TRADE DEALS AND PHARMACEUTICAL PATENTS
55
the promises made and the proposed provisions of the USMCA. Further,
showing how the lack of intellectual property expertise during trade
negotiations will prevent President Trump from fulfilling his promise to lower
pharmaceutical drug prices. Finally, section three of this Comment will argue
in favor of mandating that the United States Patent and Trademark Office
(USPTO) be present during trade negotiations, in hopes of, in the future, being
able to accomplish goals for trade without negatively impacting consumers
through intellectual property changes.
II. PROMISES MADE
Every presidential candidate makes promises and sets goals fo (...truncated)
