Legal Translators Will Be Needed with New IP Provisions
Legal translation of international contracts plays an important role in international trade. On December 19, 2019, the United States House of Representatives passed, by an overwhelming 385-41 vote, the US-Mexico-Canada Agreement (USMCA). The USMCA is intended to replace the North American Free Trade Agreement (NAFTA), which was the trade agreement between the three countries that guided trade rules for the last two decades.
The next step for the USMCA is that it must be voted on by the U.S. Senate, which should take place sometime in 2020. Ultimately, however, all three countries have to ratify the agreement before it takes effect.
The USCMA is a 2,000-page agreement that contains some important intellectual property provisions that are worthy of note. Accordingly, in this article, we will discuss the prominent USMCA provisions that deal particularly with intellectual property (IP).
In addition, we will also consider how the new provisions will impact practice for IP professionals, including the increased need for legal translation services. If you already have a need for legal translators, we invite you to contact All Language Alliance, Inc. for assistance with your multi-national litigation at 303-470-9555.
1. Legal Translation of Adjustments to Patent Term.
What is a patent term adjustment? That phrase refers to a government’s need to extend the term of a patent, i.e., the length of time a patent is enforceable, when the patent office encountered unreasonable delays in granting the patent. The unreasonable delays are delays caused by the patent office itself. Typically, the length of a delay to be considered “unreasonable” is five years from the date that the patent was filed, or three years from a request for examination.
The United States has provided patent term adjustment for many years. The provision to adjust patent terms is new, however, to Canada and Mexico. Compared to other trade deals, the patent term adjustment provision in the USMCA is a stronger version of what was in NAFTA, and is very similar to the patent term adjustment provisions in the Tran-Pacific Partnership (TPP).
2. Legal Translation of Damages for Trademark and Copyright Infringement.
With regard to trademark counterfeiting and copyright infringement, the USMCA stipulates that the member countries provide one of two remedies – either “pre-established damages,” or “additional damages,” which includes punitive damages. If the remedy is “pre-established damages,” then the USMCA states that they must be “in an amount sufficient to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement.”
This type of damage provision is new, as such a provision never existed in NAFTA. The TPP, to which the U.S. is not a signatory, has a provision very similar to the damages provision in the USMCA.
3. Legal Translation of ISP Safe Harbors.
The USMCA appropriately includes certain safe harbors for internet service providers (ISPs). Specifically, the provisions in the USMCA mandate that the member countries must establish legal remedies exempting ISPs from liability for “copyright infringements that [the ISPs] do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf.”
In order to obtain safe harbor relief under the USMCA, an ISP will need to “expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the copyright infringement or becoming aware of the facts or circumstances from which the infringement is apparent.” In addition, ISPs must also terminate the accounts of repeat offenders, but they are not required to monitor their services for possible infringing activity. As above, NAFTA did not have a similar safe harbor provision, but the TPP does.
4. Legal Translation for Removing Data Protection for Biologic Drugs.
There was one provision in the USMCA that was taken out before it was passed in the U.S. House of Representatives. That provision was data protection for biologic drugs. For purposes of background, a biologic is “a product that is produced using biotechnology processes and that is, or alternatively, contains, a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product, protein, or analogous product, for use in human beings for the prevention, treatment, or cure of a disease or condition.” In other words, it is a drug that has some biological component in it.
The USMCA initially had a provision in it that would have given a pharmaceutical company 10 years of protection from any competition for the biologic drug. While NAFTA never had such a provision, the TPP includes 8 years of such protection.
Prior to the passage in the U.S. House, however, the U.S. executive branch removed the 10 years of protection. Accordingly, the agreement passed the House without the provision included. It is unclear whether Canada or Mexico will ultimately object to the provision’s removal.
The Need for Legal Translators for the USMCA
As noted, the USMCA passed one hurdle by getting through the U.S. House. The agreement now has several other hurdles ahead, including the U.S. Senate and ratification by Canada and Mexico. However, the recent movement on the agreement indicates some momentum, such that the agreement could take effect very soon.
With the USMCA on the horizon, it is highly likely that it presents an opportunity for IP and other types of counsel to work with, or litigate, IP matters under the new agreement. If any issue involves Mexico, all of the relevant paperwork must be in both Spanish and English. To be able to handle a matter involving the USMCA in Mexico, you should consider getting help from the experienced, reliable legal translators at All Language Alliance, Inc. With our assistance, you will be able to have peace of mind that all of your technical, legal documents will be translated properly the first time. Call us 303-470-9555 today to learn more about our legal translation services from and into French, Spanish, and English.
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