Hong Kong – At the World Trade Organization ministerial here, India has proposed the launch of negotiations on the disclosure of origin of material in patent applications, and says that if this issue is not addressed, there will be no development package in the outcome of the current round of trade talks at the WTO.

“The Hong Kong ministerial must pave the way for the launch of negotiations on the issues pertaining to the relationship between the TRIPS agreement and the Convention on Bio-Diversity,” said Kamal Nath, Indian minister of commerce and industry.

The disclosure issue ties in with the relationship of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to the UN Convention on Biological Diversity (CBD), a subject under heated discussion in bilateral meetings and side events at the WTO ministerial in Hong Kong, and for which a government facilitator has been named.

Issues associated with the CBD discussion are: a possible requirement for the disclosure of origin of genetic material and traditional knowledge in patent applications, a mandated review of TRIPS Article 27.3(b) on the patenting of plants and animals, and the protection of traditional knowledge.

“On the unfinished agenda of development inherited from the Uruguay Round is the imbalance in the TRIPS agreement between private IPRs and the intellectual heritage of communities,” Nath said on 14 December. “There is growing popular discontent among developing countries over bio-piracy and the misappropriation of their traditional knowledge for commercial gain.”

According to sources, the Indian proposal, presented to the facilitator with support of Brazil, was based on the latest Indian proposal adopted in the TRIPS Council on 29 November (IPW, WTO/TRIPS, 29 November). That proposal states only that “further work is required,” and was based on Paragraph 19 (on CBD issues) of the 2001 Doha declaration.

An Indian official told Intellectual Property Watch that the only demand in the Hong Kong proposal is that negotiations should be launched within the current negotiating round, which began in 2001 and is scheduled to end in 2006.

At the moment there is disagreement as to whether there is a WTO negotiating mandate on the issue. This ambiguity has led opponents to refuse to discuss the issue, rather than look at the content of India’s proposal, the official said.

There are talks at the ministerial of agreeing to negotiate a separate “development package,” but the Indian official said that if such a package were made, India’s proposal on the CBD negotiations had to be part of it. If not, there would not be a development package.

There was confusion until 14 December as to who would be in charge of CBD issues and other topics related to TRIPS, an Indian official said. But on 15 December it was agreed that the foreign minister of Chile, Ignacio Walker, would be the facilitator. He is one of six facilitators, and is in charge of “other issues,” whose responsibilities can be flexible.

The Indian delegate said the CBD issues were being discussed in various forums and Walker would decide “how and when” officials would meet.

On 14 December, there was speculation that the facilitator mandate could go to the Norwegian foreign minister, Jonas Støre, which some argued would make sense as Norway has indicated a willingness to consider whether disclosure requirements could be incorporated into TRIPS, a non-governmental organisation (NGO) source said.

On 14 December, an industry representative indicated that Brazil had stepped back from the CBD issues, probably to focus more intensively on the agricultural talks which are dominating the general discussions. But a spokesperson from the Brazilian delegation said that there was no change in Brazil’s position on CBD and there had been “no backing down.”

Side Events Focus on CBD

A number of side events at the ministerial are focusing on TRIPS, and the CBD issue in particular, with at least five such events taking place on 15 December.

At one of these events held by Indian NGOs it was argued that the CBD issue had to be “moved” in the same manner as the TRIPS and public health issue had been.

WTO members last week agreed in Geneva last week to amend TRIPS for public health purposes. This agreement made permanent a waiver in the TRIPS agreement under which countries can export cheaper medicines to countries with inadequate or no production facilities (IPW, WTO/TRIPS, 6 December).

A speaker at the Indian NGO meeting also said that it was important to “suggest language to negotiators” which could be included in the ministerial text.

At another event held by the Quaker United Nations Office it was acknowledged that IP issues are not high on the agenda at the ministerial. But it was noted that there is in general a lot of activity in terms of bilateral agreements which included chapters on IP outlining “TRIPS plus” requirements (going beyond what is required in the TRIPS agreement), which could have “systematic implications for the WTO.” The United States has negotiated a number of such agreements, including with developing countries.

It was also said at the Quaker event that there is high tension in terms of the talks in other areas at the ministerial, with little progress so far, and that the focus was thus on these areas at the expense of others.

Development Package Taking Shape

The CBD issue is being discussed by governments in the context of development-specific issues, an African delegate said. An industry representative challenged the notion that this is a development issue, arguing that only a small number of all developing countries were in fact pushing this issue.

A US spokesperson said that the developing issues seemed to have evolved into least developed country (LDC) issues, and there were talks at the ministerial of agreeing to a so-called “LDC package.” There seems to be some confusion, however, whether this is a “LDC package” or a “development package.”

US Trade Representative Rob Portman said in a 15 December press conference that the development package covered LDC issues primarily but not exclusively. Brazil says it should not be called a development package as it is focusing on LDC issues, a source said.

Such a package would include issues such as duty-free, quota-free access of LDC products (annex F of the draft ministerial text), special and preferential treatment, aid for trade (the EU argues only cash should be given as aid, not food as the US is doing) and cotton, a WTO spokesperson said.

At a press conference with the African countries, they noted that they hoped to “get out of this week with some tangible results,” and they thought cotton and ending export subsidiaries were the areas where outcomes were likely to be reached for them.

But the African official said that some countries argued that all the issues were development issues and could not be singled out in a package. Other sources argue that this is a move by the WTO to “save face” and deliver on development, the intended primary focus of the so-called Doha Development Round.

The US spokesperson said TRIPS issues are part of the LDC package. Clement Rohee, foreign trade and international cooperation minister of Guyana, is the facilitator for development issues.

Debate Over Disclosure At ICTSD Event

At a 14 December event held by the International Centre for Trade and Sustainable Development (ICTSD), a representative for Peru said he was “confident that the [CBD] issue would remain on the agenda.” He noted that for Peru this was not only a moral issue but also a clear economic issue.

Jon Santamauro, intellectual property attaché at the US mission to the WTO, said he welcomed the work done by Peru in this area providing specific CBD examples (such as a plant called “camu camu” (IPW, WTO/TRIPS, 28 October)). The official said the United States is open to continuing the discussions and has become much more open lately in order to avoid misunderstandings, but emphasised that there was no mandate for the CBD issue in the WTO.

However, the US does not think the disclosure of origin will have the desired effects and when the US corrected patents in this area, there was no evidence that it had any impacts, the official said.

Susan Finston, executive director of American BioIndustry Alliance, said at a meeting on 15 December that until definitions on “bio-piracy” and “bio-prospecting” were agreed to, negotiations could not start. She also said these rules would add to patent offices’ work, noting that Peru had set up a “bio-piracy Gestapo.”

Brendan Barnes of the European Federation of Pharmaceutical Industries and Associations said that the CBD issue was not a Hollywood movie scenario of good versus bad, but was far more complex. He said that many pharmaceutical companies are leaving bio-prospecting because of the uncertainty. Moreover, he said, only some companies, such as Novartis and Japanese companies, were in fact involved in this manner of producing drugs.