WIPO Members Work Through Differences In Genetic Resources Document

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The development of an international instrument on the protection of genetic resources continues to engage government delegates at the World Intellectual Property Organization.

Sources have called the process constructive and meeting Chair Wayne McCook, the permanent representative of Jamaica, said delegations were very engaged in the exercise. But a sharp divide remains on several subjects.

The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 14-22 February, with this week’s sole focus on genetic resources and a mandate to find agreement on a single negotiating text.

On 16 February, the three facilitators tasked with the mandate to compile all previous propositions on the table produced a consolidated document. A second version of the document was produced later that day, putting the text in narrative format instead of in tables (IPW, WIPO, 17 February 2012).

The second 16 February text is available here [pdf].

The facilitators are Ian Goss of Australia, Raina Chandni of India, and Tom Suchanandan of South Africa.

It is on that second version of the document that delegates have been working, each delegation having the opportunity to provide comments on the document. Among the most contentious issues was the mention in the document of “intellectual property rights” instead of “patents”, with developed countries mostly favouring the use of patents in the text.

A developed country source told Intellectual Property Watch that leaving the mention of IP rights would include all kind of rights, such as trademarks, geographical indications, plant variety protection, and copyrights, and it seemed more logical to them in the context of genetic resources to address only patent issues.

Another issue on the scope of the prospective legal instrument was the inclusion or the deletion of the mention of derivatives in the consolidated document. The discussions echoed the negotiations that took place in October 2010 and led to the adoption of The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. In general, developed countries are in favour of the deletion of the term and developing countries would prefer its retention, broadening the scope of the future instrument.

In Nagoya, the definition of derivatives and the scope of the instrument were sore spots in the negotiations. Article 2 of the Protocol includes this definition: Derivative “means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.”

It seems, according to a source, that proponents of taking the mention of derivatives out of the text are seeking to avoid an overlapping of the future WIPO instrument with the Nagoya Protocol.

Mandatory Disclosure in Patent Applications

A clear partition between developing and developed countries is the mandatory disclosure of origin in patent applications. On 18 February, as delegates discussed the scope of protection, and in particular the third option of this chapter in the consolidated document on the mandatory disclosure, the African Group and the Development Agenda Group (DAG) asked that this option be retained.

Some developed countries, such as Japan, and the United States, said that there was a lack of impact analysis and studies concerning the effects of such disclosure, in particular its potential adverse effects on innovation.

South Africa on behalf of the African Group asked that the mandate of the committee be followed, which asks to expedite the work on text-based negotiations.

“The calling for further studies,” the delegate said, “will not expedite” the process, “it is meant to delay the process.” Such studies take a long time, he said, adding that there are countries where mandatory disclosure is in effect, such as Brazil and India. In South Africa, there has been a disclosure obligation since 2005, which did not lead to any more “costs or complications,” he said. The DAG followed this position.

Namibia said that the issue of mandatory disclosure in patent applications was “a credibility case for WIPO” as the “issue cannot be swept under the carpet” much longer.

Chair McCook presented his schedule for Monday (20 February), when the committee meets again. The three facilitators will go back to the consolidated document and now have a mandate to do some “administrative cleaning” of the document, reorganising it to improve the flow of text and structure it thematically, trying to avoid direct duplications and overlaps, but with extreme care so to avoid any removal or additions of points to the text, in the sake of full inclusiveness and transparency.

Once their task is done, the facilitators will meet with the proponents of text-based negotiations on Monday morning, without adding or removing anything from the text presented in plenary, and the revised consolidated document should be available to delegates by Monday over lunch, McCook said. The plenary will then reconvene at 3:00 to immediately break to leave time for delegates to consult about this revised text. The plenary should reconvene at 4:30 to start further deliberations with a view of consolidation of this document into a single text in keeping with the Committee’s mandate, he said.

On 18 February, many delegates came wearing at least some accessory reminiscent of their country as it was “national dress day” at the committee. The exotic outfits, large-brimmed hats, shiny fabrics, elaborated head gears and multi-coloured, artistically woven wraps belied the studious mood as delegates tediously went over the compilation text gathering all previous proposals.

Catherine Saez may be reached at info@ip-watch.ch.

Creative Commons License"WIPO Members Work Through Differences In Genetic Resources Document" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Comments

  1. Andre Myburgh says

    The South African delegate said, “In South Africa, there has been a disclosure obligation since 2005, which did not lead to any more ‘costs or complications.’” Regrettably the statement is incorrect. In addition to a disclosure requirement, there is also a permit requirement imported from the bioprospecting legislation, which requires prior informed consent and a benefit sharing agreement where TK is involved. From April 2008, when the full scope of these regulations came into force, until July 2011, only THREE permits were granted in respect of the use of GRs, of which TK was involved in two of the cases, therefore South Africans could only have registered THREE patents or groups of patents in South Africa in that period of over three years! (Non-South Africans would have simply filed elsewhere …)

  2. Ricardo says

    Would protecting genetic resources overlap with the discussion of whether human genes can be patented? So far there is a little over 8,000 cases of human gene patenting (http://bit.ly/zyYwpV). Depending on the decisions being made, this can affect the outcome of what will be done to these already existing patents.

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