Brazil, India Get Developed Country Support For TRIPS Amendment On Biodiversity15/06/2006 by Tove Iren S. Gerhardsen for Intellectual Property Watch 1 CommentShare this Story:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Google+ (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Much of our best content is available only to IP Watch subscribers. We are a non-profit independent news service, and subscribing to our service helps support our goals of bringing more transparency to global IP and innovation policies. To access all of our content, please subscribe now.Two new proposals on the relationship of international agreements on the protection of biodiversity were discussed at the World Trade Organization (WTO) yesterday, one of which supports a developing country view. But member states still disagree as to whether there is a conflict between international rules.The new proposals were tabled by Japan [Japan Proposal] and Norway [Norway Proposal] as the group of developing countries proposed an amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to improve biodiversity protection replied to questions raised by other members in consultations on 6 June (IPW, WTO/TRIPS, 7 June 2006). This group is led by India, Brazil and China. [Note: questions and answers attached below]This was an informal special session that was followed by the TRIPS Council. The special session was chaired by WTO Deputy Director General Rufus Yerxa and the TRIPS Council is chaired by Trevor Clarke of Barbados.The Norwegian proposal supports the idea of amending the TRIPS agreement to make disclosure of origin and the source of genetic resources and traditional knowledge mandatory in patent applications, but differs when it comes to sanctions.Brazil and India welcomed the Norwegian proposal, especially as it came from a developed country, officials said. Brazil and India are calling for negotiations now to be based on draft text, but although there are a number of proposals on the table now, there is no common text.The use of genetic resources and traditional knowledge in patented inventions is currently regulated by the UN Convention on Biological Diversity (CBD). Most countries, though not the United States, have signed up to the CBD but only around 10 have national legislation in place implementing the provisions, a source said.The CBD calls for fair benefit sharing between the provider of genetic resources and the user and prior informed consent of the provider. This is often referred to as “access and benefit-sharing.”But some developing countries have called for a harmonisation of the CBD and TRIPS. This has since become an “outstanding implementation issue” and in the December Hong Kong WTO ministerial declaration, the WTO director general is requested to “intensify his consultative process” and report to the Trade Negotiations Committee and the General Council, which will consider progress and “take any appropriate action” by the end of July.Feeding into this discussion, Japan on 9 June presented a communication (IP/C/W/472) that was discussed in a special session of the TRIPS Council on 14 June. Japan said that the council should “take into account the relevant work being carried out by WIPO [World Intellectual Property Organization]” in this area in order to “avoid the duplication of efforts.”Japan’s proposal shares some experiences from its industry and addresses issues such as “erroneously granted patents.” One solution to this problem, it suggests, could be the establishment of a database that would be accessible to all patent examiners in any country dealing with genetic resources or traditional knowledge.Japan’s proposal is identical with one it presented at the April meeting of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).Norwegian Proposal Calls for Mandatory DisclosureThe Norwegian proposal does not take a new position but merely lays out what has been the country’s position all along, Norwegian sources said.It differs from the proposal by the major developing countries in that patents would not be revoked if incorrect or incomplete information has been given in the patent applications, which is identified after the patent is granted. The Norwegian proposal says this should be penalised outside the patent system.By disclosure, the Brazil, China and India proposal includes disclosure of origin, prior informed consent and benefit sharing. But the Norwegian proposal calls for mandatory disclosure of origin as a “binding international obligation,” not the other areas.On prior informed consent, the proposal says if the national law requires prior informed consent from the provider, this should be met as well. Norwegian law requires disclosure of origin and prior informed consent in its national law.Norwegian sources said that the country’s proposals at TRIPS and at WIPO are complementary. At the last IGC meeting Norway also tabled a proposal on traditional knowledge (IPW, WIPO, 25 April 2006).Norway offered its own proposal because, the sources said, there were some elements in the developing country proposal to which it did not agree.Norwegian Foreign Minister Jonas Gahr Støre indicated at the WTO Hong Kong ministerial that Norway planned to step up its effort in securing appropriate use of genetic resources and traditional knowledge, the sources said, and he said the TRIPS agreement should be amended.The Norwegian proposal requires that source and origin of traditional knowledge also be disclosed in patent applications although it is not linked to genetic resources. On this point, and some other areas, if differs from the EU’s proposal at WIPO although it is similar, sources said.TRIPS-CBD Relationship Not an Issue?A developed country source representing the group of countries that argues that there is no problem with the relationship between the CBD and TRIPS said the approach of Norway could be traced back to the Social Democratic government that is now in power.The source said that there was no problem with the relationship between the CBD and TRIPS but rather these countries should implement the access and benefit sharing schemes at a national level.One source said that the European Union is sceptical about the Norwegian proposal, but other sources said that the EU had been open to discussing various CBD solutions. This could be linked to the stalemate in the geographical indications (GIs) discussions, others suggested (IPW, WTO/TRIPS, 13 June 2006). Officials have informally linked progress on CBD issues and progress on GIs.Brazil and India Answer Questions on ProposalOn 14 June, Brazil answered queries about the developing country group that has suggested changing the TRIPS agreement to include an Article 29bis (which Norway also supports).Examples of the questions were: Is there a need to disclose more than source (asked by Switzerland); Why is the term “biological” resource used instead of “genetic” resource (EU and the Philippines); What is to be understood by the term “associated traditional knowledge” (EU); Will the requirement to publish require publication with the patent or separately from the patent application (EU)?The replies to all the questions are available below.GI Extension IssuesSeparately, another implementation issue is the proposal to extend the higher protection of geographical indications that wines and spirits enjoy to other products as well. This was discussed on 13 June, also with Yerxa as the chair.But there was no indication of any of the parties moving from their positions, one participant said, adding that the chair had characterised the discussion as “repetitive.”Proponents such as Switzerland and the European Union called for moving to text-based negotiations, but the United States said this would be premature, the source said.Switzerland and the EU also tied the issue of GI extension to the overall “modalities” on agriculture discussions in the current round of WTO trade talks. They were supported by countries such as Turkey, Kenya, Morocco, Thailand, Bulgaria and Romania, the source said, while the US was supported by Mexico, Canada, Argentina, Australia, Brazil, Chile, Chinese Taipei, New Zealand, Costa Rica and South Africa.Support for Plant Genetic TreatySeparately, the UN Food and Agriculture Organization (FAO) yesterday urged member countries to support the International Treaty on Plant Genetic Resources for Food and Agriculture, whose goal it is to safeguard the genetic diversity of crops and fight hunger and malnutrition.The statement was made at a ministerial meeting in Madrid attended by more than 70 ministers where a ministerial declaration on the implementation of the treaty was approved, according to the UN.At the FAO’s Regional Conference of Europe in Riga, Latvia 8-9 June, the importance of cooperation within agriculture to fight hunger was also emphasised, the UN said.Brazil-India WTO ResponseShare this Story:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Google+ (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Related"Brazil, India Get Developed Country Support For TRIPS Amendment On Biodiversity" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.