WIPO Members Aim For Single Text On Genetic Resources Protection

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Members of the World Intellectual Property Organization, in the company of indigenous groups from around the world, have entered into eight days of intensive negotiations to try to agree on a draft text for an instrument on the protection of genetic resources.

The Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 14-22 February. Documents for the meeting are here.

There are several proposals on genetic resources protection on the table, and negotiators began by agreeing to ask three facilitators acting independently from their governments to put the proposals together in one document from which to work. The facilitators are from Australia, India and South Africa, and appear to be aiming for completion by Thursday.

The IGC, which had its longstanding mandate renewed for another two years by the annual General Assembly last September, will meet more than once this year. But this meeting is the only one dedicated to genetic resources, an area which is lagging behind the subjects of traditional knowledge and traditional cultural expressions (folklore). Those two already have texts upon which negotiations are based.

This week, the committee will follow the roadmap left behind by the past chairman, Amb. Philip Owade, according to the new chair. That is, it will address three themes: objectives and principles; the defensive protection of genetic resources; and the consistency and synergy between the IP system and the UN Convention on Biological Diversity (CBD). The CBD includes the recently negotiated Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. Also in consideration is the UN Food and Agriculture Organization International Treaty on Genetic Resources for Food and Agriculture.

There is general acceptance that the committee should work toward an instrument, but there are significant differences on whether it should be a legally binding treaty or something softer.

Developing countries have long sought international tools to help them to protect against misappropriation of their resources, and have become the strong proponents of a legally binding treaty. This is especially the case since negotiations for a related amendment to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) stalled in recent years. The proposed amendment would have required the disclosure of the origin of genetic resources in patent applications.

Developed countries are generally opposed to a formal international treaty, preferring to leave legal terms to the national level.

The Asian Group opened its remarks yesterday by saying, “It’s time to move to substantive negotiations and beyond the objectives and principles.” The Group of Latin American and Caribbean Countries (GRULAC) said that agreement is needed in time for the next General Assembly to decide to move to the diplomatic conference (high level negotiation). GRULAC also “deplored” the fact that the report of the past chair, (document WIPO/GRTKF/IC/20/INF/4) had not been made available in Spanish until this week.

The African Group said the work of the facilitators should be in line with the mandate of the committee to develop a single legal text to be presented to the Assembly.

Algeria on behalf of the Development Agenda Group also said the committee should work toward a single legal working document and a proposal for a diplomatic conference.

China (a regional group to itself) said time would be needed to analyse the text with comprehensive discussion and the ability to add suggestions later.

The United States on behalf of Group B developed countries said the focus for now should be on cleaning up the objectives and principles, and developing “options”, while leaving open the possibility for any new proposals later on.

“Group B rejects any sort of treaty format,” the US said. Instead, the committee should focus on options.

The chair confirmed that new proposals can be taken into account later in the process.

Negotiations this week are under the guidance of a new and brisk chairman, and began with encouragement from WIPO Director General Francis Gurry. The focus turned promptly on the first day and into the second day on draft objectives and principles, document WIPO/GRTKF/IC/20/4, which was negotiated at the last meeting of the IGC in July (IPW, WIPO, 22 July 2011).

On the suggestion of the chair, discussion so far has not been on line-by-line negotiation of the draft objectives and principles text, but rather on suggestions governments may have for the facilitators in their drafting. In early remarks, Group B countries sought to remove mention of disclosure of source of genetic resources from the text, as well as reference to derivatives. They said these could be discussed in the appropriate sections later on, if at all.

According to the Owade report, the defensive protection of genetic resources refers to “preventing patents being granted over inventions based on or developed using GRs (and associated TK) which do not fulfil the existing requirements of novelty and inventiveness.” Options are being discussed today aimed at helping patent examiners find relevant prior art and avoid the granting of erroneous patents.

“The relationship between IP and GRs is perhaps less clear than that between IP and TK/TCEs,” Owade wrote. Among the issues is the fact that genetic resources are not intellectual property as they are encountered in nature. “They are not creations of the mind and thus they cannot be directly protected as IP.”

This issue may come into debate in the IGC. The draft objectives and principles document contains an option to state: “Ensure that no patents on life and life forms are granted for genetic resources and associated traditional knowledge,” as proposed by Bolivia and Venezuela. The United States said yesterday it would not be able to accept that as it might run contrary to its laws and well as of the TRIPS agreement. Venezuela countered that not including it would contrary to their constitution and that of Bolivia.

There are proposals on the table from the African Group (WIPO/GRTKF/IC/20/INF/12), European Union (WIPO/GRTKF/IC/20/INF/8), Japan (WIPO/GRTKF/IC/20/INF/11), Like-Minded Countries (WIPO/GRTKF/IC/20/20/6), and Switzerland (WIPO/GRTKF/IC/20/INF/10).

The Swiss suggest a middle way, for instance, allowing that joining the instrument be voluntary, but once adopted its terms would be mandatory. Switzerland also has a national disclosure requirement adopted in 2008 (Art. 49a of the revised Patent Act) that it says “obliges the patent applicant to provide information regarding the source of a genetic resource and traditional knowledge in the patent application. According to Article 138, this obligation also applies to international applications. Article 81a provides for a fine and the publication of the judgment as a penalty for wilful contraventions.”

The cross-regional Like-Minded Countries believe they have the most representative proposal that could be a starting point for discussion. But it remains to be seen how developed countries receive it.

Japan’s proposal is related to databases.

The committee is working toward synthesizing the various proposals in order to find agreement on topics, rather than orienting discussions around which region has made a particular proposal.

Separately, the WIPO secretariat has issued a call for replenishment of the voluntary fund (doc. WIPO/GRTKF/IC/20/3) that allows the participation of indigenous peoples at the IGC meetings. Currently the fund will run out after this year.

And on the first day, the committee accepted accreditation for a range of groups as observers, including: Association for Integration and Sustainable Development in Burundi, Association of Kabyle Women, Association of Kunas United for Mother Earth, Civil Society Organizations’ Network for Sustainable Agriculture and Environment in East Africa, Christ is calling you, Committee for the Promotion and Protection of Human Rights, Copyright Agency Limited, Institute for European Studies at the Vrije Universtiteit Brussel, Kabylia for the Environment, Massai Experience, Ontario Federation on Indian Friendship Centres, and Punto Verde Association.

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

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