Biggest Developing Countries Present TRIPS Amendment ProposalPublished on 7 June 2006 @ 12:35 pm
By William New, Intellectual Property Watch
The world’s largest developing countries are seeking an amendment to international trade rules to provide more protection for genetic resources and traditional knowledge used in patent applications, and have presented the amendment proposal to other governments with mixed results.
Brazil, India and China are among the eight countries that have publicly supported the proposal to amend the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The original proposal, WT/GC/W/564, was formally submitted on 31 May (IPW, WTO/TRIPS, 1 June 2006). The proposal is put forward by India along with Brazil, Pakistan, Peru, Thailand and Tanzania. A revised version adds China and Cuba as cosponsors.
A developing country participant said afterward that the discussion showed that most countries are ready to begin text-based negotiations, without committing them beforehand to agree to an amendment in the end.
“The discussion has moved the matter toward text-based negotiations, without prejudice to whether discussions would result in an outcome,” the developing country participant said. The official said the developed country opponents are blocking it for political reasons, generally to defend the interests of their industries.
Officials from developed countries, including Australia, Canada, Europe and the United States, told Intellectual Property Watch afterward that they had not heard anything new in the presentation and had not changed their positions. These countries generally hold the view that it is premature to consider an amendment to TRIPS to address concerns about misappropriation of genetic resources and traditional knowledge, or that the proposed amendment is too broad.
The 6 June consultation on so-called Convention on Biological Diversity (CBD) issues at the WTO was led by WTO Deputy Director-General Rufus Yerxa, on behalf of the director-general. Yerxa said afterward that “progress” had been made but that consultations would continue.
Another consultation is scheduled for 13 June, at the opening of the next meeting of the TRIPS Council. The TRIPS Council is scheduled to hold a special session on 12-13 June, followed by a regular meeting of the TRIPS Council on 14-15 June.
At issue is a proposal to create a five-paragraph Article 29bis in the TRIPS agreement establishing requirements for the disclosure of origin of biological resources and traditional knowledge. Article 29 relates to conditions on patent applications, including disclosure of the invention details. The proposal would require greater detail in the disclosure of the country providing the resources as well as the country of origin “after reasonable inquiry.” It also would require evidence of compliance with legal requirements in the providing country for prior informed consent to access the resources, and fair and equitable benefit-sharing of commercial uses. Other measures include required updates and enforcement.
At the 13 June consultation, proponents plan to give responses to technical questions raised, and then likely leave the matter to ministers working at the higher level on all issues under consideration in the current round of trade negotiations at the WTO, the developing country source said.
CBD issues are expected to be discussed at the TRIPS Council meeting as well as the agenda has several CBD-related items on it, the official said (the agenda has not been made available yet). The preceding special session follows the WTO mandate to agree on a register for geographical indications, which are product names associated with geographic places or product characteristics. GIs and this CBD issue are considered “outstanding implementation issues” related to the implementation of agreements at the WTO, and Yerxa is coordinating such issues, with any action to be taken by 31 July as stated in the declaration of the December Hong Kong ministerial.
In the 6 June consultation, Colombia, Ecuador, and Venezuela said they are discussing the amendment matter in their capitals, with at least Colombia indicating it may sign on. Argentina, which had been cited as an opponent, softened its position to say it is under discussion in the capital as well. There also are other countries considering signing on, a proponent said.
The Philippines, Singapore and Taiwan raised concerns in the meeting, sources said. One participant said Singapore said an approach to preventing misappropriation through contracts has been effective, but did not provide examples. The Philippines raised technical questions but indicated support for the objective, the participant said.
Norway, which has stated support for discussing the matter at the WTO, said it would produce its own proposal, possibly watering down provisions on prior informed consent and benefit sharing, one source said.
The European Union, speaking for 25 countries, cited its proposal at the World Intellectual Property Organization and said it will be a “challenge” to reconcile the two, the source said. But the EU and Switzerland appear not be opposed to discussing the matter at the WTO, and Brazil explicitly stated that the WTO is the proper venue, the source said.
Switzerland prefers disclosure through WIPO’s Patent Cooperation Treaty and said in the 6 June meeting that since GIs are its priority, it would need to have a serious discussion on the extension of elevated GI status to other products beyond wines and spirits, sources said.
The outcome of negotiations, should they occur, could be somewhere between the proposed WTO amendment and the EU’s WIPO proposal, a developing country source said. The EU proposal differs from the WTO proposal in at least two key ways. First, it would limit the focus to disclosure of origin of genetic material directly used in the invention. The proposed WTO amendment would require disclosure of origin whether directly or indirectly used in the invention, and would extend to traditional knowledge as well.
In addition, the European Union views some terms in the WTO amendment proposal as too broad, sources said. The EU proposal would use the term “genetic resources” with the view that the developing countries term, “biological resources” is too broad, a source said. And the European Union is concerned about use the burden put on patent applicants by use of the term “reasonable” in determining their requirements for proper disclosure, the source said.
Japan, Korea and the United States continue to argue that there is no actual mandate to negotiate on this issue. In the 6 June meeting, the United States was challenged to put forward the precise legal reason for this, a participant said.
The CBD issues are indirectly tied to the GIs talks, as the proponents of each have shown willingness to possibly support the others’ proposal in exchange for support of their own, sources said. Under this theory, Australia’s opposition to CBDs could be explained by its staunch opposition to GIs, one source said.
India has pushed the CBD issue at a high level, pitching it as fitting well under the current round’s theme as the Development Round. But Indian officials have not explicitly indicated whether or which tradeoffs in other negotiating areas they would be willing to give to get the CBD protection.