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shorter or no protection. Therefore, these countries were offered a transitional period
to change their laws to comply with TRIPS; for example, the least developed countries
have now time until 2021 to incorporate the necessary provisions.54
The protection period of twenty years was negotiated as an optimal period to reward
the patentee for his invention and encourage further development. However, espe-
cially in the case of pharmaceuticals, it can take years before the product is approved
and released on the market. TRIPS-plus provisions try to compensate these delays by
offering patent term extension. By offering the extensions, the provisions recover part
of the effective period which was lost due to unforeseeable delays.55 Therefore the pat-
entee does not loose any economic benefits.
The FTAs with the US as a signatory party generally contain patent term exten-
sion. The US demands such provisions because it is required by the US law. The US-
Singapore FTA,56 the US-Morocco FTA57 or the CAFTA-DR 58 all include patent ex-
tension provisions. For example, the US-Morocco FTA provides patent term exten-
sion to compensate the patent owner for delays in the marketing approval process of
pharmaceuticals. The applicability of the patent term extension provisions is of course
dependent on the speed of the authorizations; should there be no delay, no extension
is necessary.
During the TPP negotiations, the US position was to provide extension for cases
of delays in issuance of patents lasting more than four years of filling the applica-
tion. Canada, New Zealand and Japan opposed this proposal.59 Referring specifically
to pharmaceuticals, the US proposed to provide extension in cases of unreasonable
curtailment in the marketing approval process.60 The final text of TPP provides for
adjustments in cases of (1) unreasonable delays at the patent office of more than five
years of the filling of the patent (This may seem as a victory of the US. However, the
TPP allows parties to exclude from the time limit periods that do not occur during
the processing of the patent application, are not attributable to the patent granting authority or are attributable
to the patent applicant.)61 and (2) unreasonable delay in obtaining a regulatory or marketing
54 Bryan C. Mercurio “TRIPS, Patents, and Access to Life-Saving Drugs in Developing World” (2004) 8:2
Marq. Intell. Prop. L. Rev. 211.
55 Jakkrit Kuanpoth “TRIPS-Plus Rules under Free Trade Agreements: An Asian Perspective” in Heat supra
note 53 at 35.
56 US-Singapore FTA, in force: 1 January 2004 online
agreements/singapore-fta> at art. 16.7(7), 16.7(8) and 16.8 (4) [US-Singapore FTA].
57 US-Morocco FTA, in force: 15 June 2004 online <
ments/morocco-fta> art. 15.10(3) [US-Morocco FTA].
58 Dominican Republic-Central America FTA CAFTA-DR in force: 2006 online:
agreements/free-trade-agreements/cafta-dr-dominican-republic-central-america-fta> art. 15.9(6).
59 Wikileaks supra note 33art. QQ.E.XX.
60 Ibid art. QQ.E.14.
61 TPP art. 18.46.