By William New
India and other proponents on Wednesday sought to counter concern raised by the World Trade Organization chief that a “clash” could occur if differences are not narrowed on a proposed amendment to WTO intellectual property rules for the protection of genetic resources and traditional knowledge.

“There is a groundswell of support for this critical deliverable,” R K Khullar, India’s chief negotiator from New Delhi, told the WTO General Council meeting Wednesday. “This is an idea whose time has come. Efforts to brush this issue under the carpet [are] fraught with the risk of endangering the horizontal process.”

At issue is a proposal by India, Brazil, Peru and many others, supported by more than half of the WTO’s 151 members, to amend the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The amendment, which would add a TRIPS Article 29bis, would require that patent applicants specify the origin of genetic material and traditional knowledge in the application. The hope is that this would help countries better protect their resources from biopiracy, or misappropriation. The proposed amendment is seen as improving the relationship between TRIPS and the earlier UN Convention on Biological Diversity (CBD).

The 7 May meeting of the ruling General Council included a report of the Trade Negotiations Committee from WTO Director General Pascal Lamy on the high-level negotiations occurring at the WTO. On TRIPS-related issues possibly on the table, Lamy said “more clarity” is needed.

The CBD issue is being linked by some with a proposal to negotiate an extension to other products of the higher level of protection that wines and spirits geographical indications (GIs) receive under TRIPS. GIs are products whose names derive from specific regions and characteristics. Neither the CBD amendment nor the GI extension has clear mandates to be negotiated in the round.

Nations stating support for the CBD amendment or the GI extension at the 7 May General Council meeting included India, Brazil, Switzerland, European Union, the African Group (represented by Côte d’Ivoire), Ecuador and China, according to sources.

The United States warned that the focus should remain on modalities in agriculture and non-agricultural market access, the sources said. The US is among a smaller group of nations seen as having little to gain from either the CBD or GI extension proposals. Australia is often outspoken against the GI proposal but remained quiet as it has the General Council chairmanship, a source said.

The extension proposal is separate from another GI issue for which there is a mandate, which is to establish a GI register. The chair of that process discussing the register is preparing a report to the Trade Negotiations Committee.

Supporters of the GI issues, mainly Europe but including other key economies, and proponents of the CBD amendment have publicly shown willingness to support each others’ proposals. Reports are also being prepared on the CBD and GI extension issues, Lamy said.

But from consultations, Lamy said, “I believe these reports are likely to factually set out different positions, rather than to offer solutions.” However, he said, “consultations are continuing and I reiterate my call today for continued efforts between the groups of members concerned, so as to try to avoid a big clash during the modalities exercise” that will take place when ministers meet (possibly by July, some sources said).

This echoed Lamy’s comment from a 16 April TNC meeting that failure to narrow differences on IP issues could put them at risk and cause a “clash” among ministers in the broader negotiations, referred to as the “horizontal” process (IPW, WTO/TRIPS, 18 April 2008).

It was this view that the Indian negotiator countered.

“Mr Director General, talking of the TRIPS-CBD issue, you had prophesised … a ‘big clash during the modalities exercise’. You mentioned the possibility of a big clash even today. With such wide support we do not see the possibility of such a clash,” Khullar said in his statement.

“The support for this [CBD amendment] issue has been increasing consistently since the Doha ministerial [which launched current negotiations in 2001],” he said. “Today the disclosure proposal is cosponsored a by majority of the membership. The breadth and depth of support enjoyed by the disclosure proposal is now well established.”

Khullar added that “numerical support cannot be the sole determinant.” But, he said, the geographical spread and the socioeconomic profile of cosponsors “are a barometer of importance and urgency attached to the issue.”

“There is also wide convergence on the issue, the minimum of which are the shared objectives of strengthening mutual supportiveness between TRIPS and CBD and taking measures to counter biopiracy, erroneous patents and misappropriation of genetic resources,” he added.

Khullar called “strongly” for the start of text-based negotiations, based on the draft modalities text submitted by the proponents, to begin immediately. “If other members wish to bring something on the table, they are most welcome to do so,” Khullar said. “Let me reiterate my willingness to walk the extra mile in search of an effective solution to meet our shared objectives.”

William New may be reached at wnew@ip-watch.ch.