World Trade Organization Director General Pascal Lamy on Monday is expected to inform members that months of informal consultations on two key intellectual property issues on which a majority of governments would like a clear negotiating mandate have not yet resulted in an agreement. But proponents are hopeful the high-level attention to the subject will help start progress toward resolution in the future.

While no major breakthrough is expected to be announced, the meeting is seen as important as it will be the first time Lamy will indicate his impressions on the intractable negotiation, a source told Intellectual Property Watch.

Lamy has met four times since March (IPW, WTO, 12 March 2009) with a small group of governments who are particularly concerned about these issues.

Many disagreements seem to remain, but discussion at the last of these informal meetings on 17 July revolved around technical matters, a departure from a focus in previous meetings on whether there is a mandate to negotiate.

Informal consultations among interested parties will continue after the August holiday period, but no formal dates are planned yet.

The two issues are: the extension to other items of the high-level protection currently given to geographical indications on names of wines and spirits associated with particular geographical regions, and a requirement that patent applications disclose the origin of genetic resources used in the application. The latter issue grew out of a mandate to analyse the relationship between WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the UN Convention on Biological Diversity (CBD).

Intellectual property – in the form of genetic resources, indigenous knowledge, and local products – is not being protected adequately by the TRIPS agreement, around 110 governments have said. In order to remedy this, the TRIPS agreement must be modified, they argue. To ensure that happens, the group formed a strategic alliance in July 2008 and negotiated a set of draft modalities – or ways forward – on the two issues and another IP issue of concern. Their document is numbered TN/C/W/52, and is available here [pdf].

But other countries have opposed the linkages between the geographical indication issue and the biodiversity issue, saying that they are too different and discussing them together is inappropriate.

Some opponents continue to suggest separating the two IP issues because there is apparently more willingness to discuss the biodiversity issue than GI extension.

“The two issues [GI extension and CBD amendment] are very different” for the opposing countries, said a diplomatic source in Geneva. “On CBD, you can clearly see people are more open to discussing their [views].” On GI extension, “there’s not anything,” the source said. “Flexibility would be accepting the extension.”

Technical Discussions in Recent Informals

At the 17 July meeting, questions put by Lamy to member states were discussed. These included concerns over whether or not extending GI protection to a greater number of products could be integrated into national trademark systems and over whether a proposal by Japan for a database of genetic resources and traditional knowledge could satisfy concerns about misappropriation.

The proponents of the W/52 document said they did not see any difficulty integrating the GI extension proposal into trademark systems, a point which was “not contested,” one proponent told Intellectual Property Watch.

What this means, the source added, is that the problem is not an issue of implementation – which is technically and legally possible – but an issue of whether or not GI extension is desired.

But an opponent of the W/52 said “I think it has been obvious even to Lamy that … this extension is not needed,” as most of the countries that oppose extension already adequately protect European GIs through means such as sui generis or trademarks.

Meanwhile, a separate W/52 proponent said a genetic resources database could be useful, but that it is a complementary measure and not enough to prevent misappropriation of genetic resources. It is more useful to have an instrument in patent applications that requires disclosure of origin, the source added.

“We have not asked for a database,” said one proponent. “We are not opposed either [but] it has to be complemented with protection measures.”

The Search for Flexibility

States still search for common ground in the lead-up to the December WTO ministerial meeting, at which governments might hope to see a resolution to the long-standing Doha Round of trade liberalisation talks, but some on the side of W/52 have said the remaining opponents have shown no flexibility in addressing their concerns.

“It is clear from the opposition side that they don’t want to open TRIPS,” observed one. Another said the W/52 proponents were to bring up concerns about the lack of flexibility at the 24 July Trade Negotiations Committee, the body overseeing the current WTO round of negotiations.

Some sources said there appears to be a sense that if the proponents continue to insist these issues are on the table that there likely will be some way of addressing their concerns if there is an outcome to the Doha Round.