By Kaitlin Mara
A confidential draft text circulated recently among some World Trade Organization members reveals an attempt to consolidate separate proposals aimed at the protection of product names with location-related associations and characteristics (called geographical indications) and at the protection of biological diversity and traditional knowledge. Proponents appear to still be seeking support in the lead-up to next week’s WTO mini-ministerial in Geneva.

While the issues have been linked loosely before, this text – labelled “draft modalities text on TRIPS issues” – represents a first attempt to spell out how these intellectual property issues might be addressed if WTO members decide to negotiate on them. TRIPS refers to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. It is aimed at getting the IP issues into the high-level negotiations at the WTO, an attempt that continues to hang in the balance.

The confidential paper is available here to IP-Watch subscribers. [Note: country names have been deleted from document head]

The paper, dated 30 June, proposes language on draft modalities, or steps forward, on: a GI register for wines and spirits, which was previously mandated by WTO members; the extension to other products of the higher level of protection wines and spirits enjoy; and an amendment to TRIPS to require the disclosure of origin of genetic material and traditional knowledge in patent applications. The latter proposal arose from efforts to more closely align the WTO agreement with the preceding Convention on Biological Diversity (CBD).

The document’s authors “all want modalities at the ministerial,” a diplomatic source said, referring to the upcoming high-level negotiations at the WTO, scheduled to begin on 21 July. The key question is how this can be achieved, the source added.

Proponents of completing the GI register and extending higher level GI protection have mainly been the European Union and Switzerland. Proponents of the CBD-related amendment have traditionally included Brazil, India and Peru.

The draft text proposes that members “shall provide” that their national authorities will consult the register, and that any product listed in the register will be assumed a legitimate GI “absent evidence to the contrary.” Traditional opponents such as Argentina, Australia and the United States in the past have urged that the register be voluntary and have raised concerns about it applying to them automatically.

Also in the GI register proposal, exceptions of certain product names from GI registration due to their ‘generic’ nature, as allowed by Article 24 of TRIPS, would be allowed “only if substantiated.”

The GI extension would apply to all products and would retain the exceptions found under TRIPS Article 24.

The CBD language would require disclosure in order for patent applications to be processed, and would commit members to define “the nature and extent” of prior informed consent and access and benefit-sharing. The draft calls for text-based negotiations on all three issues.

Supporters of the 30 June text told Intellectual Property Watch that the version was not considered final and that changes should be expected before the text is floated publicly, if in fact it is.

Proponents of the GI issues and the CBD issues linked their efforts explicitly in a “non-paper” dated 26 May (IPW, WTO/TRIPS, 9 June 2008) that specified its authors were writing “without prejudice to the outcome of consultations” on either issue. The non-paper appeared to observers to be a tactical attempt to get intellectual property issues discussed during the ministerial, and brought together well over 100 WTO members.

In recent months, some biodiversity amendment proponents have signalled that an extension on GIs to goods other than wines and spirits might be acceptable if done properly, and some GI proponents have shown a willingness to consider a CBD amendment.

This edging toward middle ground is an “attempt to facilitate the process,” said one source. Another source explained that there had been seven years of “or” discussions – focussed on only one IP issue at a time – and that these had not been fruitful. The status of the GI extension friends and the CBD friends is essentially the same, added the second source, in that it is unclear if either issue needs is mandated to be part of the Doha round of trade liberalisation talks.

What the IP proponents are after, explained a WTO source, is less an agreement on a text and more an agreement to negotiate. This means that negotiations on a GI register would become “text-based” and a decision likely would be made to begin negotiation on GI extension and disclosure of origin “as a part of the single undertaking.”

“Single undertaking” refers to a negotiating approach at the WTO that nothing is agreed until everything is agreed: that is, all issues on the table must be resolved before the negotiations can be considered complete. Were these issues to be included in this undertaking, it could mean modalities on agriculture and non-agricultural market access – the two focal points of this overall round of WTO talks – could not go forward without agreement on intellectual property.

A separate diplomatic source echoed the WTO source, saying “the process is less relevant than that ministers agree” to include the issues, meaning that the details of the paper are less relevant than the strength of the call to make IP a part of the single undertaking.

The Upcoming Process

The situation at the WTO is currently very delicate, with GI and CBD friends concerned that public discussion might jeopardise their issues, and with developed country biotechnology industry representatives seeking to prevent the CBD proposal from being included in the negotiations.

One biotech industry source raised concern that the disclosure of origin requirement will result in undue burdens on patent applications as the concept of “sufficient disclosure” is subjective. Requirements to go ever further in pinpointing the source of genetic material could creep into such specificity as to make satisfying the requirement impossible, the source said.

A WTO source said that “no deadline” exists for submitting text. Members, the source continued, can discuss anything they wish at any time before or during the ministerial meeting. This means that it is highly unclear what will happen to IP issues, or even the precise procedure for coping with them. As the WTO source concluded, “We will have to wait and see.”

William New contributed to this story.

Kaitlin Mara may be reached at kmara@ip-watch.ch