WIPO: Positions Locked On Protection Of Genetic Resources; Experts To The Rescue

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Delegates attending the World Intellectual Property Organization’s committee on genetic resources this week restated their long-held positions on the issue at the start of the meeting yesterday before letting a secluded expert group try to bridge gaps.

The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 4-8 February.

In a long opening statement, IGC Chair Wayne McCook of Jamaica presented the work agenda for the week. He said an expert group would work on improving the current consolidated text inherited from the last session of the IGC on genetic resources, in February 2012, and the group’s revised text would be presented to plenary three times during the week.

Three facilitators are expected to help with the drafting process: Ian Goss from Australia, Emmanuel Sackey from the African Regional Intellectual Property Organization, and Biswajit Dhar from India.

New Document Calls for Study on Benefits and Cost Related to Disclosure

On 4 February, a new working document [pdf] was submitted by the delegations of Canada, Japan, South Korea and the United States. The document is a proposal for the terms of reference for the study by the WIPO secretariat on measures related to the avoidance of the erroneous grant of patents and compliance with existing access and benefit-sharing systems.

The study requests the WIPO secretariat with the involvement of the WIPO chief economist to update the WIPO Technical Study on Patent Disclosure Requirements Related to Genetic Resources and Traditional Knowledge, with information regarding disclosure requirements and related access and benefit sharing (ABS) system that have been implemented by WIPO members.

The study is expected to analyse benefits received by provider countries due to disclosure requirements and related ABS systems, costs to national offices/jurisdictions resulting from a disclosure requirement, and costs associated with a disclosure requirement and related requirements, such as prior informed consent and mutually agreed terms, to patent applicants.

At the end of the February 2012 IGC meeting on genetic resources, the United States said it had requested in plenary sessions that the WIPO secretariat conduct a study on how existing mandatory disclosure mechanisms fulfil access and benefit sharing. This request, supported by Japan and South Korea, was met with reluctance by a number of developing countries, which said ample evidence had already been collected over the years (IPW, WIPO, 23 February 2012).

IGC Chair Intent on Closed Informal Negotiations

In what appeared to be a new method to advance the drafting process, McCook told members, “I ask that the integrity and informality of smaller expert group be respected and maintained,” adding that it was important that the experts feel they have the freedom to make suggestions and comments not on the basis of attribution and without being held to a national position for such interventions. Experts testing ideas in the expert group should not be reading their tested ideas in the media the following day, he said.

“It stands to reason that if one expert were to feel that this exchange would be treated as a formal intervention and be reported or reflected on as such it would chill the exchange and therefore defeat or undermine the process of a frank and full discussion among experts,” he said, indicating that no transmission would be made of those expert consultations.

“In the event this approach is not observed, I reserve the right to seek the IGC’s consent to take such actions as may be necessary,” he said, adding that the process could revert to negotiations in plenary, which have not led to much progress in the past.

Marathon Round of Comments on Text before Drafting Session

On the opening afternoon, delegates were pressed by the chair to produce comments on the consolidated document, which is currently composed of policy objectives, and nine articles.

Delegates stood fast to their usual positions, with a clear divide between countries on the issue of the mandatory disclosure of origin of genetic resources in patent applications. Developing countries that took the floor, such as Brazil, China, Nigeria and Peru, expressed strong support for an effective mandatory disclosure, while developed countries, such as the United States, Japan, Canada and South Korea adopted a clear opposite view.

Developing countries are also in favour of a binding international legal instrument.

The United States, in a long statement on the policy objectives of the consolidated text, said the country did not support the use of the patent system to ensure compliance with the requirements on disclosure of the source of origin of genetic resources in patent applications. The US is concerned, the delegate said, about the expansion of the scope of disclosure when reference is made to derivatives and associated traditional knowledge.

The issue of derivatives has been raised in several fora by developed countries wary of the expansion of the scope of international instruments. For example, during negotiations of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization to the Convention of Biological Diversity (CBD), the same issue arose. 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.”

The issue of derivatives raises a number of questions, the US delegate said. “What is a derivative?” he asked. “Would a synthetic compound that is the result of a study of a naturally occurring compound always be considered to be a derivative? Would wine be considered to be a derivative of grape?” Similarly, he expressed concern about the scope of traditional knowledge, asking if a community could be entitled to claim knowledge as their own even though this knowledge is widely disseminated.

Japan said a mandatory disclosure of the source of genetic resources in patent applications could harm innovation.

The US cannot support the reference to other international instruments to which it is not party, or has not yet implemented. This includes the Convention on Biological Diversity (CBD), and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization to the CBD.

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

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