WHAT IS THE TRADE-OFF: ARE NEW TRADE DEALS WORTH THE CHANGES TO PHARMACEUTICAL PATENTS?

• Author: Carter, Kaitlyn

1. INTRODUCTION II. PROMISES MADE III. PROMISES IN PLACE? IV. HOW TO RECONCILE THE DISCONNECT BETWEEN PROMISES MADE AND PROMISES KEPT? V. CONCLUSION 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 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 States-Mexico-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 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.

2. PROMISES MADE

   Every presidential candidate makes promises and sets goals for their term. The overwhelming theme of President Trump's promises is this: America first. (14) President Trump promised to accomplish this through extensive trade reform and lowering pharmaceutical drug prices. This section will analyze these promises and how President Trump intends to carry them out.

   During President Trump's inaugural address, he said, "Every decision on trade ... will be made to benefit American workers and American families.... America will start winning again, winning like never before." (15) During his first day in office, President Trump withdrew from the TPP, deeming it "a disastrous deal for our workers" and vowing to pursue one-on-one deals that protect Americans. (16) Within his first two years of office, NAFTA had been abandoned and made way for the newly negotiated USMCA. (17) In the 2018 State of the Union address, President Trump exclaimed that "America has ... finally turned the page on decades of unfair trade deals.... From now on, we expect trading relationships to be fair and, very importantly, reciprocal." (18) These are just a few examples of how President Trump has committed to his promise of trade reform.

   A significant overlap exists between intellectual property and trade reform. It is clear that the Trump Administration recognizes this intersection. In 2018, the White House published a thirty-three-page document explaining the President's trade policy agenda. (19) This agenda highlights five major pillars driving President Trump's trade negotiations. (20) Two of these five pillars involve intellectual property. (21) The first pillar is supporting our national security, stating that the national security strategy relies heavily on the United States "preserving] our lead in research and technology and protecting] our economy from competitors who unfairly acquire our intellectual property." (22) The second pillar, that involves intellectual property, is "negotiating trade deals that work for all Americans." (23) This pillar particular refers to the need to reform NAFTA. (24) The trade agenda states that the renegotiation of NAFTA has two primary goals: 1) to "[i]mprove the U.S. trade balance and reduce the trade deficit with the NAFTA countries;" and, 2) to bring the provisions concerning digital trade, intellectual property, and cybersecurity into the 21st century. (25)

   In addition, the USTR publishes a Special 301 Report every year that further emphasizes the importance of intellectual property during trade deals. (26) This report states, "[o]ne of the top priorities for the Trump Administration is to ... provide adequate and effective protection and enforcement of U.S. intellectual property [] rights." (27) The special 301 report is an annual review of intellectual property protection and enforcement in United States trading partners. (28) The purpose of the report is to call out and expose harmful intellectual property practices by other countries. (29) These reports are not unique to the Trump Administration, and intellectual property has been a main priority of the USTR for some time. (30)

   The mention of intellectual property in both the trade agenda and the Special 301 Reports demonstrates that the Trump Administration recognizes that intellectual property protection goes hand in hand with trade negotiations. (31) In fact, intellectual property is a key selling point when it comes to dealings with many United States trading partners. (32) But, despite the great importance placed on intellectual property, there is a fundamental lacking of intellectual property knowledge among the President, the USTR, and the general American public, which leads to unfulfilled goals and promises.

3. PROMISES IN PLACE?

   This administration has moved quickly to make changes and to effectuate promises of the President. Within his first week in office, President Trump began working on his promise of trade reform. (33) This section will analyze the disconnect between the promises made and the policy that has been put into effect. This section will also explain that the disconnect resulted from a lack of intellectual property understanding. Although President Trump has worked on numerous trade agreements, (34) this section will primarily focus on the USMCA.

   The USMCA is a trilateral agreement between the United States, Mexico, and Canada. (35) This agreement replaced NAFTA, which President Trump deemed to be "the worst trade deal ever made." (36) President Trump claims the USMCA is "the most advanced trade deal in the world with ambitious provisions on ... patents." (37) The goal of the USMCA was to bring trade agreements into the 21st century and...