Our guess is that the diplomatic and somewhat, but only somewhat, euphemistic language of Commissioner De Gucht is a better guide to what is going to happen than the seemingly more straightforward assessment from Mr. Davies. Still, is it a fact of modern life that politicians are forever running to catch up with their promises. And their opponents, would-be umpires all, can be heard yelling, "Out! Out!" during the run. No surprise there.
If you think there will be a deal - and we do - then the things to focus on are those "technical" details, both the ones being negotiated and the ones that frame the negotiations. Part of that frame is made up of still other negotiations. The big one here is the EU's T-TIP negotiation with the United States. Another part of the frame is Eli Lilly's challenge to the Government of Canada under the investor-state dispute settlement provisions of NAFTA. We suspect CETA will be a reality long before the U.S. and EU conclude their T-TIP negotiations. For now, however, the T-TIP talks are a complicating factor as Canada and the EU seek to close the CETA deal. So too is the patent issue highlighted by the Eli Lilly case.
Yet a third relates to the way each of the three governments, the EU, Canada, and the United States, is dealing with the demands for more transparency. In the U.S. it is a particularly important issue for the chairman of the Senate Finance Committee, Senator
Ron Wyden (D-OR). For now, however, it is the EU's publication of the investment chapter of the T-TIP negotiations and their related public consultation process that really have the world's attention.
It is hard to know what to make of that process: who should share what, when, and with whom in the middle of a trade negotiation.
What is clear is that everyone has a stake in everyone else's negotiation. The U.S. certainly has a stake in the CETA talks and some of those technical details loom rather large. What also seems clear is that this is one game where it doesn't make sense to root for the same team all of the time. Two "technical issues" in the EU-Canada talks illustrate the point.
Georgraphical indications is one of those. This is the name for the EU's bid to extend the European system of rights for certain trade names to the New World, where the European system would be highly disruptive to long-established practice. Where GI's are concerned, we assume American business is pulling for Canada, hoping the Canadians will concede little to Brussels in this area. (To an American, nothing is more American than Kraft Parmesan cheese, not even apple pie.)
Patent Utility. But the Canadians too have come up with some pernicious anomalies. Alone in the world they have stripped companies of patents on the basis of an expanded and apparently unique interpretation of the concept of "utility" in patent applications. They did that to a couple of patents held by Eli Lilly, and, as noted, the company is fighting back.
On the other side, Canada's negotiators are reportedly pressing their European counterparts to agree to carve outs from investor-state that would shield Canada from challenges in this area, at least from Europe. And reportedly the EU is not going along.
On this one, we expect U.S. business will be rooting for the EU. We assume there are least 32 Members of Congress who are also rooting for the EU on this issue. We have in mind the 32 U.S. Representatives who sent a letter to
Ambassador Froman on April 10, expressing their concern about "the lack of adequate and effective intellectual property rights in Canada," especially the treatment of certain patents. Here is a short excerpt from that letter:
"This new and unique interpretation [of patent law] has so far resulted in 18 revoked patents for innovative medicines on the basis that they are not "useful." This has occurred after these drugs had been approved by the Canadian health regulatory agency as safe and effective and are in wide use by patients in Canada. No other country has denied or revoked patents on any of these 18 medicines on these grounds, and, perhaps most egregiously, we understand that the companies in Canada that have sought to have these patents revoked on the basis that they are not 'useful' are now marketing the very same not useful medicines to patients themselves." (As usual, the emphasis is ours.)
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We don't know whether e.e. cummings actually had an Uncle Sol, but he said he did in the poem he wrote about him. Uncle Sol was a ne'er-do-well, and the poem begins
"nobody loses all the time." Our hope is that Canada and the EU both come out winners as signatories to CETA, and soon. We also hope that each loses at least one round along the way, the EU on GIs and Canada on its defense of a dubious patent scheme.
