WTO Members Launch Debate On IP And Innovation; LDCs Seek More Time To Enforce IP Rules

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Members of the World Trade Organization intellectual property rights committee today launched their first-ever debate on IP and innovation. In addition, least developed countries formally requested an extension of their transition period to enforce WTO rules on IPRs.

The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) met on 6-7 November.

According to the WTO, the discussion on the topic of intellectual property and innovation was a first since the creation of the council in 1995. The TRIPS Agreement took effect on 1 January 1995. [corrected]

The United States and Brazil brought the new agenda item on innovation and intellectual property, which stirred a lively discussion, according to participants.

Brazil said in its statement to the council [pdf] today that the primary intention of the agenda item was to “help set the stage for a debate, without prejudging any outcome whatsoever.” Brazilian delegate José Estanislau do Amaral told Intellectual Property Watch that the agenda item prompted two hours of discussion and were about 100 participants in the meeting. A WTO source said there were 18 interventions, including the World Intellectual Property Organization and the African Intellectual Property Organization.

The goal was achieved, Amaral said, with the high level of participation, in which countries contributed to the debate and provided information on their own experiences with innovation. “That debate was missing at the WTO,” he said.

The Brazilian statement said that the TRIPS Agreement itself refers to innovation only once, in Article 7 on objectives, and in other articles, the word “inventions” is used in place of innovation, it says, although innovation “is a much broader concept in scope.”

Policymakers are faced with a challenge, the statement said, of designing a system which generates incentives for investment in innovation and at the same time “minimizes losses caused by the granting of IP rights.” In South America, “Brazil has contributed to disseminating a culture of intellectual property and to promoting cooperation among national patent offices,” the statement said.

The United States, in its statement [pdf], said the item had been brought into the TRIPS Council “to have an exchange of information on national innovation strategies and the role intellectual property protection plays in fostering innovation. Our hope is that by sharing national experiences, we all may contribute to the mutual goal of providing stable and predictable environments to promote and benefit from innovation.”

Developing Country Reservations

Sources said that although countries willingly engaged in the debate, which they deem is very important, some developing countries underlined the fact that there is not a systematic causal connection between intellectual property and innovation.

A developing country delegate told Intellectual Property Watch that each country has its own angle on the issue but that it is important to consider the innovation divide between developed and developing countries. As noted by the WIPO innovation index 2012 (IPW, WIPO, 3 July 2012), there is a growing and persistent innovation divide between countries and regions, he said. In that light, more should be done to breach that divide.

Innovation is about protection, the developing country delegate said, but stronger intellectual property does not necessarily mean better innovation. Innovation needs a holistic approach including education, research and development, more capacity-building and technology transfer, he added.

LDC Extension for TRIPS Implementation

Haiti, on behalf of the least developed country members, circulated a request [pdf] for an extension of the transitional period under Article 66.1 of the TRIPS Agreement.

“The situation of LDCs has not changed significantly since the last extension decision in 2005,” the request says, and “LDCs continue to play a very marginal role in the world economy, and their growing integration in the global market has been accompanied by very limited advances (if any) in their relative position compared with the rest of the world.”

To answer special needs of least developed countries (LDCs), in 2005 the TRIPS Council decided to extend the transition period for TRIPS enforcement until 2013. According to the WTO, “at the Eighth Ministerial Conference of December 2011, the ministers invited the TRIPS Council to give full consideration to a duly motivated request from LDCs for a further extension” (IPW, WTO/TRIPS, 19 December 2011).

LDCs already have an extension until 2016 during which they do not have to provide patent protection for pharmaceuticals, after a decision of June 2002.

“Least developed country Members of the WTO hereby submit a duly motivated request for an extension of the transitional period (that ends on 1 July 2013) for as long as the WTO Member remains a least developed country,” said the request circulated today.

According to a WTO source, no decision on this request was taken because the item was put on the agenda late and under “other business.” The LDC extension was requested to be put on the agenda of the next TRIPS Council meeting in March.

According to the WTO website, “When the WTO agreements took effect on 1 January 1995, developed countries were given one year to ensure that their laws and practices conform with the TRIPS agreement. Developing countries and (under certain conditions) transition economies were given five years, until 2000. Least-developed countries had 11 years, until 2006 — now extended to 2013 in general, and to 2016 for pharmaceutical patents and undisclosed information. If a developing country did not provide product patent protection in a particular area of technology when the TRIPS Agreement became applicable to it (1 January 2000), it had up to five additional years to introduce the protection.”

Other Agenda Items: Countries Hold Fast to Positions

Meanwhile, the TRIPS Council also addressed a list of other agenda items, on which country positions remained broadly the same, according to several sources.

The review of TRIPS Article 27.3(b) concerning the patentability of plants and animals for example, has long eluded consensus. The discussion has shifted towards paragraph 19 of the Doha Declaration which provided that the TRIPS Council should look at the relationship between the TRIPS Agreement and the United Nations Convention on Biological Diversity (CBD), and at the protection of traditional knowledge and folklore. Member states have also discussed in this context the disclosure of origin of generic resources and associated traditional knowledge in patent applications.

According to a WTO source, some countries argue that TRIPS does not conflict with CBD. The United States, among other countries, said this week that WIPO is already discussing an international legal instrument (IPW, WIPO, 7 October 2012) with 18 days of meeting planned for work in 2013. The US statement is here [pdf].

“Our position on these issues [review of Article 27.3(b), relationship between TRIPS and CBD and protection of traditional knowledge and folklore] is well known and continues, including with respect to patent disclosure requirements, which we continue to oppose,” they said.

They added: “Significant work remains to be done in the IGC to better understand the policy objectives and principles that would support proposals regarding the protection of traditional knowledge, traditional cultural expressions and genetic resources.”

This week, Ecuador made a statement [pdf] (in Spanish) on the issue, saying that the discussions on the subject have been going on for the last 15 years and the number of documents issued betray the lack of an efficient system to prevent misappropriation and to promote the protection of traditional knowledge and biological diversity.

There is a need to establish a system which has binding commitments to require the disclosure of origin of genetic resources and associated traditional knowledge in patent applications at the international level, Ecuador said. It argued that the international debate on the relationship between TRIPS and CBD should be further stimulated and proposed that the WTO secretariat establish a compilation summarizing debates and communications from members that have taken place during the last 15 years in the TRIPS Council.

Egypt proposed to hold an information session on the result of this compilation, according to an Egyptian delegate. However, according to some sources, some countries such as the United States and the African Group said they needed more time to consider this option and no decision was taken by the council. According to sources, some countries were reluctant to consider the compilation exercise and the information session as their positions were unchanged.

According to the WTO, the last compilations on the subject were issued in 2006, here [pdf].

Separately, the European Union and Switzerland organised an event on TRIPS/CBD and geographical indications, after the close of the TRIPS Council meeting. The closed event was expected to address the relationship between the TRIPS and the CBD and the potential of geographical indications protection.

This session of the TRIPS Council also held the annual review of the so-called paragraph 6 system, which is a temporary waiver to TRIPS rules allowing production under compulsory licence for export toward developing countries lacking pharmaceutical manufacturing capabilities. The 2003 waiver was approved as a permanent amendment to TRIPS in 2005 but still has not been adopted by enough countries to take effect. The deadline for countries to adopt this amendment at national level has been moved several times, now is 31 December 2013 (IPW, WTO/TRIPS, 1 December 2011). Paragraph 6 refers to the 2001 Doha Declaration on TRIPS and Public Health.

Some countries in previous TRIPS Council sessions have called for a workshop to examine the system, including other stakeholders, such as India and China, while some other countries such as the European Union and the United States considered this discussion was the responsibility of members (IPW, WTO/TRIPS, 10 June 2010). During this week’s session, the United States said that although they support the paragraph 6 mechanism, this is “is one of many tools to address the issue of access to medicines.”

The WTO reported that since the last TRIPS Council meeting in June, Taiwan has accepted the TRIPS amendment. Chile and Turkey said acceptance is being discussed by their parliaments. Well over 40 countries plus the European Union have accepted the amendment to date, according to the WTO website.

The provisional dates for the TRIPS Council meetings in 2013 are: 5-6 March, 11-12 June, and 5-6 November.

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

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  1. […] The African Group has said that they did not want a reference to this test in the treaty, according to several developing country sources. One of the reasons for this position is that TRIPS recognises the special needs of least developed countries (LDCs), which do not have to implement the TRIPS provisions until 2013. Under the current conditions, if an obligation such as the three-step test was including in the treaty, that would request LDCs to apply an obligation which they are not bound to apply at the moment, according to the African Group. LDCs are in the process of requesting an extension of that period at the WTO (IPW, WTO/TRIPS, 12 November 2012). […]

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