Abrupt End To Ministerial Leaves Questions On Future Of IP Issues At WTOPublished on 31 July 2008 @ 8:19 pm
Intellectual Property Watch
By William New
The World Trade Organization Doha Round is over, and bitterly, at least for now, but negotiators left town with the general consensus that hard-earned work to date should not be lost and that there might be resumption of talks sometime in the future.
The fate of intellectual property issues at the WTO remains vague and may not come clear for weeks or months, according to some sources, while others said it will be business as usual for international trade rules on IP.
The WTO mini-ministerial held in Geneva from 21-29 July ended in collapse, and members have scattered to rethink and maybe later regroup.
“The main question is what happens with the round at this point, because then we can start speculating on TRIPS,” one source said. TRIPS is the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights.
The progress on TRIPS issues was not formalised during the ministerial, as the issue did not reach the level of ministers, “but people have probably learned” the issues, the source said. IP negotiators met regularly during the past 10 days since the ministerial began on 21 July, and had made some progress on process if not substance of proposals (IPW, WTO/TRIPS, 29 July 2008).
The WTO secretariat also is facing questions about how it will handle intellectual property issues with the departure of Adrian Otten, head of the WTO IP Division, who has been involved with IP issues at the organisation since before the TRIPS agreement. Some sources have said his departure may prompt some consideration of whether to restructure internal management of TRIPS issues.
The three IP issues under consideration at the ministerial were: 1) the establishment of an international register of wines and spirits geographical indications – product names associated with places and characteristics (“GI register”); 2) the possibility of extending higher level GI protection (TRIPS Article 23) to products other than wines and spirits (“GI extension”); and 3) a proposed amendment to the TRIPS agreement that would bring it in line with obligations under the UN Convention on Biological Diversity (CBD), adding a requirement for disclosure of origin in patent applications and possibly ensuring benefit-sharing with communities to deter biopiracy (“CBD amendment”).
India was one of the chief proponents of the CBD amendment, and an Indian official said afterward that it is too soon to consider how those who see a need for more biodiversity protection will proceed. “We are always willing to constructively engage,” he said, on the basis of the proposal they and others put forward at the start of the ministerial (IPW, WTO/TRIPS, 18 July 2008).
A European government source said, “If we’d had modalities then some paper would have come on the table, but it didn’t. The question is what’s the status of that.”
Europe was a strong proponent of higher protection for geographical indications, distinctive products named for places.
No members appear to have mentioned TRIPS issues in their closing statements at the meetings of the Trade Negotiations Committee (Wednesday) or General Council (Thursday), participants said. But some members called for overall talks to begin again in September.
An Indian consultant commented to an Intellectual Property Watch story posted on the ip-health listserv, questioning whether the built-in review of TRIPS Article 27.3(b) could be a place for the biodiversity disclosure issue to reappear. “Even if the Doha talks have collapsed, the mandate on members to pursue the review of Article 27.3(b) will remain intact,” the commenter said. Article 27.3(b) covers the patenting of life forms, a topic that Bolivia raised in the final General Council, according to the WTO press officer.
Article 27.3(b) was mandated for review in the TRIPS agreement four years after the agreement went into effect, which was 1 January, 2005. The review mandate was renewed under Article 19 of the 2001 Doha Declaration. But it has not progressed significantly in the TRIPS Council over the years.
WTO Marches On
Whether or not there is a round, WTO activities related to TRIPS will continue, such as implementation and dispute settlement, sources said. It is unclear how much a cessation in formal negotiations will impact discussions among members in the TRIPS Council, nor whether focus will turn more sharply to dispute settlement.
Thaddeus Burns, an IP lawyer at General Electric Corporation and a former US negotiator, said that despite the ministerial collapse the WTO will continue to function as a “tremendously important institution.” From an IP standpoint, they “don’t need a round every couple of years,” he said, as governments “can spend the next 10 to 20 years seeing the benefits of TRIPS unfold in terms of helping developing countries move up the value curve in terms of innovation.” The TRIPS agreement, he said, creates an “enabling environment” that didn’t exist before, and is “like steroids for innovation.”
Ahmed Abdel Latif, programme manager for intellectual property at the International Centre for Trade and Sustainable Development, said, “Discussions on the three TRIPS issues during the ministerial meeting and possible ways to address them were mostly limited to ‘process’ matters that would not entail significant changes in comparison with existing deliberations on these issues.”
“This comes, in part, as a result of dealing with complex issues where differences have gone unresolved at the technical level for many years,” he said.
Yet, Abdel Latif added, “It is also significant that TRIPS issues became one of the debated matters in the ministerial meeting. This has certainly reinforced the need for reaching concrete outcomes on issues that have been on the table for many years.”
This is particularly the case of the TRIPS-CBD relationship which he said has “gained momentum during the past year as a result of the increased support for proposals to introduce a disclosure requirement in patent applications to declare the origin of genetic resources and associated traditional knowledge used in the inventions, and this notwithstanding differences over the legal consequences for non-compliance with this requirement.”
A US industry lobbyist, meanwhile, called the collapse of the talks a “sad day for the trading system,” but said there was some relief in industry that the CBD amendment did not proceed.
An African delegate told Intellectual Property Watch the reason that disclosure of origin is so important to least-developed countries is that lack of development is so extreme in these communities – and the forefront of biotechnological development so advanced – that there is limited capacity to understand what is contained within traditional knowledge and genetic resources that is being used in new products up for patenting.
So those communities also do not understand how to get advantages from the use of their resources, he said, because they do not know what of those resources is inside the new product.
Joe Guinan of the German Marshall Fund told a 24 July side event early in the ministerial, “I think if there isn’t progress in the next few days, they’re heading into uncharted waters.”
At the event, sponsored by the fund, John Weekes, senior policy advisor at Sidley Austin law firm in Geneva, and Canadian ambassador to the General Agreement on Tariffs and Trade during the Uruguay Round, predicted that failure to complete the round now could delay implementation of any agreements as far into the future as 2020.
If there had been an agreement this week, the earliest to finish negotiations would have been end of 2009, with implementation likely on 1 January, 2011, he calculated.
But failure could be affected by presidential elections, especially in the United States (there are other elections as well such as in India next year), which could lead to a new administration in the United States choosing not to continue the effort on the Doha Round or trying to refocus WTO on other issues such as climate change. A change would lead to a new process of years to set an agenda and conduct negotiations, he said.
“I don’t think that 2020 is all that far-fetched,” Weekes said. That would be 28 years after the current baseline for negotiated tariffs, which is 1993, from the last round of negotiations, the Uruguay Round, he noted.
He also noted that there is a precedent in that the first George Bush was unable to finish the Uruguay Round before giving way to the Clinton administration, which took it up and completed it. But he warned against waiting. “I think the longer we wait to complete this deal, the more complicated it is going to become,” he added. “It is very hard to freeze positions as they are.”
Kaitlin Mara contributed to this article.
William New may be reached at email@example.com.