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    Draft Text On Protection Of Genetic Resources On Its Way To WIPO Assembly

    Published on 8 February 2013 @ 11:42 pm

    By , Intellectual Property Watch

    At the end of a weeklong drafting exercise, World Intellectual Property Organization delegates have produced a text on the protection of genetic resources that appears to be headed to the organisation’s annual General Assembly next September. And some members hope that a high-level meeting will be convened in the course of 2014 to agree on an international instrument or instruments protecting genetic resources against misappropriation.

    The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 4-8 February.

    IGC Chair Wayne McCook from Jamaica was lauded by participants as the draft decisions [pdf] were swiftly adopted this afternoon without modifications.

    “I applaud delegations that exercise flexibility when flexibility is warranted but also are clear about their limitations when they have no flexibility because it is a fool’s errand when somebody promises something here in Geneva that their capital cannot deliver, encouraging delegates to consult,” he said.

    Reflecting on the progress accomplished during the week, McCook said, “We are at a point of shared discomfort, which is an important point in the negotiation, where everybody feels they do not have what exactly what they wanted and everybody also has concerns that they are not holding on to what they originally had in the same way, but a negotiation is about give and take, and that means what it says.”

    The consolidated document relating to intellectual property and genetic resources – Rev 2 [pdf] will be transmitted to the WIPO General Assembly in September 2013 in accordance with the committee’s mandate (IPW, WIPO, 8 February 2013), after it has been amended by the facilitators to take into account any errors and omissions, according to WIPO. All other interventions made on the text by member states will be recorded in the report of the session.

    The text, bearing a large number of brackets, shows that divergences still need to be bridged. The IGC meeting scheduled for July has three extra days planned for the end to discuss the three legs of the IGC: genetic resources, traditional knowledge and traditional cultural expressions. But this genetic resources text is not expected to be reopened then.

    Joint Recommendations, Proposals

    Some developed countries submitted two joint recommendations, and a proposal.

    One joint recommendation was resubmitted after it was decided to postpone the discussion when it was first submitted at the 20th session of the IGC.

    Canada, Japan, Norway, South Korea and the United States, resubmitted their joint recommendation on genetic resources and associated traditional knowledge, for a non-binding instrument without a disclosure requirement. This was presented to the plenary on 7 February.

    On 1 February, Canada, Japan, South Korea, and the US also submitted 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, also presented to the plenary on 7 February. At the same time, the group further presented another joint recommendation on the use of databases for the defensive protection of genetic resources and traditional knowledge associated with genetic resources, submitted on 5 February.

    The US, presenting the joint recommendation on genetic resources and associated traditional knowledge, said the joint recommendation captures key objectives and facilitates the establishment of effective mechanisms for the protection of genetic resources and associated traditional knowledge.

    “As one of the top 20 mega-diverse countries, the US recognises the value that biodiversity contributes towards society,” the delegate said. The joint recommendation means to facilitate clear procedures for obtaining authorised access to genetic resources in exchange of equitable monetary or non monetary benefits, but such access and benefit-sharing procedures should be entirely independent of the filing of patent applications, he said and the enforcement of prior informed consent and mutually agreed terms through the IP system is unnecessary, he added.

    The three documents raised a variety of reactions and concerns from developing countries. In particular, they underlined that the mandate given to the IGC by the October 2012 General Assembly was to work on the consolidated document. The fact that the three documents do not include any mention of mandatory disclosure requirement was pointed out by developing countries as not representing consensus.

    On the establishment of databases, some developing countries said they could achieve the opposite effect than to help protect genetic resources and actually facilitate misappropriation. Indigenous peoples representatives underlined the fact that some of their traditional knowledge could be included in those databases without their consent, on the assumption that it is in the public domain. Bolivia shared the same concern, as well as about the cost of the establishment of such databases.

    India, which is a precursor with its Traditional Knowledge Digital Library, agreed that databases are useful as one of the tools to prevent the granting of erroneous patents, but the subject was already part of the discussion and therefore did not separate discussion.

    Defensive measures, such as databases, should be complementary to a legally binding instrument, said Brazil. A number of other developing countries remarked that defensive measures were already included in the consolidated document (in Article 3). They did not wish to have parallel discussions on the same subject, which would duplicate discussions already being carried out on those matters within the expert group.

    The US said the Russia might join the co-sponsors of the draft terms of reference on the study, which would be carried out by the WIPO secretariat without prejudice to the work of the IGC. Russia, although interested in the study, has put a number of questions to US before making its decision, it said.

    Japan, one of the co-sponsors, said evidence was needed to support new norms and no such evidence support the mandatory disclosure mechanism. The study would analyse the impact of mandatory disclosure and its effect on innovation. According to developed country sources, mandatory disclosure of genetic resources in patent applications would have a chilling effect on biotech innovations because it would create legal uncertainty and increase the risk of litigation.

    Switzerland in Favour of Mandatory Disclosure

    In the IGC, Switzerland has an uncommon position in the group of developed countries. The country tabled a proposal in 2003 about a disclosure of the source requirement of genetic resources and traditional knowledge in patent applications, Martin Girsberger, head of Sustainable Development and International Cooperation at the Swiss Federal Institute of Intellectual Property told Intellectual Property Watch.

    The country has had such a mandatory disclosure of source requirement in its legislation since July 2008, he said.

    The consolidated document includes important elements of this proposal, for example parts dealing with the concept of source, the concept that inventions need to be directly based on genetic resources and traditional knowledge, pre-grant and post-grant sanctions, the international gateway and the notification procedure.

    On the joint recommendation on databases, Girsberger said, “It is always helpful to have more information at hands for patent examiners.” The proposal to have databases can go in parallel with the mandatory disclosure. They can be mutually supportive approaches to resolve the issues at hand.

    One of the objectives of the disclosure requirement is to facilitate the job of patent examiners. The fact that they know genetic resources come from a certain country will not be enough by itself, but it can help the patent examiners when searching for more specific information to resort to a database or some other tools, he said.

    “One key issue with databases is to determine who has access and how to regulate that access. There needs to be a system to limit and secure access,” he added in response to concerns of some developing country that databases could actually make misappropriation easier.

    On the necessity of the study requested by Canada, Japan, South Korea and the US, Girsberger said, “Any study would be helpful but enough information is available to negotiate, and negotiations should go along.”

    “Based on our experience up to now, we are not aware of any discouragement from the biotech industry because of mandatory disclosure of source requirement,” he added.

    Countries also have divergent views on the relationship with other international agreements. The US for example is not party to the UN Convention on Biological Diversity (CBD) and said 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 was not implemented yet. Developing countries are in favour of a consistency between the future instrument(s) and the other international agreements dealing with access and benefit sharing.

    The relationship with existing international agreements was also addressed in the Swiss proposal, he said.

    “It is quite obvious that what we do here in WIPO should take into account the relevant instruments on access and benefit-sharing, such as the CBD, the Nagoya Protocol, and the International Treat on Plant Genetic Resources for Food and Agriculture.” The list of terms should refer to the same definitions as these other instruments in order to achieve a mutually supportive solution.

     

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

     

    Comments

    1. Latest Developments, February 8 | Beyond Aid says:

      [...] treaty Intellectual Property Watch reports that UN delegates have produced a text that could lead to “an international instrument or instruments protecting genetic resources [...]

    2. WIPO Members Back In Negotiations On Protection Of Traditional Cultural Expressions | Intellectual Property Watch says:

      [...] is the third meeting of the IGC this year. The committee met on genetic resources in February (IPW, WIPO, 8 February 2013), and on traditional knowledge in April (IPW, WIPO, 28 April 2013). WIPO is budgeting for a [...]

    3. Amid Proposals, Ambassadors Fail To Unlock WIPO Talks On TK, GRs | Intellectual Property Watch says:

      […] This morning, delegates are expected to work in informal technical groups on the draft text carried over from the last session (IPW, WIPO, 8 February 2013). […]

    4. New WIPO Text On Genetic Resources Focuses On Misappropriation, Disclosure Still Uncertain | Intellectual Property Watch says:

      […] from and carried over from the last session of the IGC on genetic resources, in February 2013 (IPW, WIPO, 8 February […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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