By Tove Iren S. Gerhardsen
At a recent World Trade Organization (WTO) meeting, Switzerland questioned an earlier proposal by Norway to link WTO intellectual property rules with the protection of biodiversity. But Peru, as one of the demanders of such a scheme, said it is highly needed.

The 25-26 October meeting was a regular session of the WTO Council for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

At issue is the relationship between the TRIPS agreement and the United Nations Convention on Biological Diversity (CBD), which the TRIPS Council has a mandate to discuss under paragraph 12(b) of the Doha Declaration, agreed to at the WTO ministerial in Doha, Qatar in 2001.

The topic came in the background of a larger debate on enforcement, one source said, but two other sources said the discussion “kept the ball rolling” and “kept the [CBD] issue on the table,” although a WTO official said “positions remain unchanged.”

Peru presented a new communication in response to a previous US paper (see advanced copy in Spanish). As questions were raised on whether the cases of biopiracy Peru has previously presented were provable, it argued that they are potential cases.

Peru also presented its new, national, online genetic resources and traditional knowledge database, a Peruvian official told Intellectual Property Watch. It is accessible to foreigners as well as Peruvians, he said.

But despite having implemented national disclosure legislation, Peru says an international regime is needed to stop biopiracy. “CBD objectives cannot be easily reached without a disclosure of origin regime, which would aim at giving transparency to the patent system, and permitting countries to fulfil their legal obligations within CBD regimes,” the official said.

“This is an issue of utmost importance to Peru” and other developing countries, the official said, adding that it is important to “keep the pressure” on this issue in the TRIPS Council despite the general international WTO discussions of liberalising trade having been put on hold (IPW, WTO/TRIPS, 24 July 2006).

Swiss Questions to Norway

A group of developing countries have proposed an amendment to the TRIPS agreement to require disclosure of the origin of genetic material and traditional knowledge in patent applications, the informed consent of the owners of the genetic material and benefit schemes for potential gains of the patented invention using the genetic material (IPW, WTO/TRIPS, 7 June 2006). The amendment would be in the form of a TRIPS Article 29bis.

Most developed countries are opposed to this, but Norway this year tabled a proposal supporting the a portion of Article 29bis idea, though it disagreed on sanctions (IPW, WTO/TRIPS, 16 June 2006).

Norway has proposed that patents not be revoked if incorrect or incomplete information was given in the patent applications and identified after the patent is granted, and has said this should be penalised outside the patent system.

In the meeting, Switzerland made reference to its proposal in the World Intellectual Property Organization regarding the disclosure of source and said it believes the TRIPS agreement is “adequately flexible” to accommodate a national disclosure of source requirement and does not need to be amended. Solutions to the issues of prior informed consent and benefit sharing “need to be found outside the patent system,” it said.

Switzerland questioned the Norwegian proposal in a “purely technical manner,” according to the speaking notes of the Swiss delegate, obtained by Intellectual Property Watch.

An official from Norway told Intellectual Property Watch that: “We are at the moment considering the questions carefully and working on the replies,” adding that Norway welcomes Switzerland’s interest in getting the best possible understanding of what is being discussed.

Switzerland questioned how Norway views the application of the proposed TRIPS amendment to “international and regional patent applications.” Switzerland also asked Norway to explain what it means by requiring disclosure by the “supplier country” of genetic resources, and how this is different from the “country providing genetic resources” as applied in Article 15 of the CBD.

Moreover, Switzerland sought clarification from Norway on the proposed requirement to disclose “‘the supplier country’ and the ‘country of origin’ of traditional knowledge,” according to the note, which states that this is not referred to in the CBD. “[W]hat would be the role of the holders of this knowledge, that is, indigenous and local communities? Would they also have to be disclosed?” Switzerland asked.

In its proposal, Norway says that: “[if] the applicant is unable or refuses to give information despite having had an opportunity to do so, the application should not be allowed to proceed.” Switzerland asks whether this sanction would also apply if the patent applicant is unable to do so “for reasons beyond his control.”

Finally, Switzerland challenged the compatibility of the proposed changes to the TRIPS agreement with the International Treaty on Plant Genetic Resources for Food and Agriculture if it uses the terms “supplier country” and “country of origin” which are not found in the treaty.

Switzerland is supported by Australia, Canada, the European Union, New Zealand, South Korea and the United States, according to the WTO official. Countries that called for text-based discussions on disclosure are Brazil, China, Dominican Republic, Ecuador, India, Kenya, Malaysia, Norway, Sri Lanka, Thailand and Venezuela, the official said.

China Review

Separately, in relation to the transitional review of China’s membership agreement, the EU, Japan and the United States submitted written questions on China’s implementation of the TRIPS agreement, according to the WTO official. They said that TRIPS infringements in China remain at “high levels and more efforts are needed to provide effective protection,” the official said.

China answered the questions but left some unanswered, most of which related to requested data. It also presented its implementation efforts, the WTO official said.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.