WTO TRIPS Council: Discussion Of Innovation Shows Divergent Views; Tobacco Back On Agenda

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The impact of intellectual property rights on the transfer of ‘green’ technology was brought up to the World Trade Organization committee on intellectual property this week with divided points of view. In addition, a discussion on cost-effective innovation was criticised by some developing countries as side-tracking the committee’s objectives, and the European Union’s planned revision of its tobacco products directive was disapproved by some producer countries.

Briefly discussed during the March session of the Council of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a paper by Ecuador [pdf] on environmental technologies was formally introduced during this week’ s Council meeting. The document suggests a number of solutions to facilitate the transfer to developing countries of environmentally-sound technologies that might be hindered by intellectual property rights.

The TRIPS Council took place from 11-12 June.

According to Ecuador, given the amplitude of the impact of climate change, every avenue should be explored to find mitigation solutions. In this case, an Ecuadorian delegate told Intellectual Property Watch, besides the discussions being carried on at the United Nations Framework Convention on Climate Change (UNFCCC), “we are trying to bring the issue into other fora.”

The WTO, and in particular the TRIPS Council, is an adequate forum for climate change discussions in relation to intellectual property rights, such as patents and technology transfer, he said.

“We are not suggesting that the IP system is a problem,” he said, but maybe IP could be hindering access because of the way the IP system is established.

Climate change affects all countries of the world, he said, and “our first idea is that this global problem requires a common response, not limited to one area of debate such as the UNFCCC.” Some countries have the resources, the technological know-how and the economic power to deal with climate change, but others do not, he said.

The paper called for a number of actions to be taken, in particular a review of Article 31 of TRIPS, on Other Use Without Authorization of the Right Holder,” and an evaluation of Article 33 of the TRIPS on the term of protection (IPW, WTO/TRIPS, 7 June 2013).

It also suggested “adopting at the Bali Ministerial Conference a declaration in which Members would enshrine the principle that “nothing in the TRIPS Agreement can minimize or impair the flexibilities provided for in that Agreement, nor prevent or limit Members taking measures they consider necessary to protect their population from the effects of climate change and to make use of “environmentally sound technologies.”

Several countries supported the topic of discussion, such as India and Brazil. Brazil said many countries have used flexibilities in a way to foster the development of green technologies. “Brazil’s Institute of Industrial Property is also taking steps in this direction, promoting a pilot project to accelerate the examination of EST [environmentally sound technology] patents in order to allow fast introduction of patented products in the market,” the Brazilian delegate said.

“A fast examination can play an important role to make ESTs available, nonetheless the quality of patent examination is also relevant to this debate. In this regard, low quality examination hinders innovation and generates unnecessary costs to users of the patent system limiting the resources at disposal to the development of environmentally sound technologies,” he added.

India said the delegation was not able to analyse the proposal but provided preliminary comments. “Although technological innovation is only part of the overall solution to climate change, it in fact an essential aspect of it,” the delegate said. In order to move towards a green economy “and to serve the objective of restricting global warming, it is necessary to overcome the dilemma between the need for widespread and rapid diffusion of knowledge and climate technologies to developing countries ; and the need for incentives for technological developments and innovations.”

India also said that it had made a contribution in the discussions in the WTO Committee on Trade and Environment as a part of the issues relating to market access. In this context. India “proposed the need for reducing the patent duration for these technological innovations [ESTs] or to have a relook over the provisions of Art 31 so it does not become a barrier in issuing compulsory licenses in exceptional cases,” he said.

“On any principle of equity,” he said, “the industrialized countries have to bear a large share of the burden. They are historically responsible for the bulk of the accumulated GHG emissions and this alone suggests a greater responsibility.”

“It’s high time that the global efforts towards a cleaner world do not get hindered because of the barriers posed by multilateral agreements like the TRIPS Agreement or by efforts be some Members to protect narrow commercial interests,” he concluded.

According to a source, China also supported the discussion but reserved its right to respond to Ecuador’s more specific proposals. Bangladesh and Bolivia also supported Ecuador, the source said. Nepal told Intellectual Property Watch that it supported Ecuador in principle.

Developed countries, according to several sources, said that IP protection is an incentive for the development of environmentally sound technologies and does not hinder technology transfer. According to the Ecuadorian delegate, developed countries such as the United States, Japan, the European Union, and Switzerland considered that the assumption that IP was hindering technology transfer was not based on facts and on reality. A WTO source said they cited numerous research findings to support this view.

An EU delegate told Intellectual Property Watch that the EU welcomed the discussion but generally disagreed with Ecuador’s proposals.

Agenda Item on Innovation Criticised by India

Intellectual property and cost-effective innovation was also discussed during this session of the TRIPS Council at the request of Canada, Chile, the EU, South Korea, Switzerland, Taiwan and the US.

India objected to the discussion and said, “As in the past we oppose the repeated inclusion of an agenda item on innovation as it is not related to any particular aspect of the TRIPS Agreement.”

“Repeated inclusion of the agenda item on innovation is giving us an impression that they [the proponents] would like to convert TRIPS Council into a talk shop on innovation success stories,” he said, in a written statement.

India, the delegate said, has declared the decade of the 2010s as the decade of innovation. “The National Innovation Council was set up to create a crosscutting system which will provide mutually reinforcing policies, recommendations and methodologies to implement and boost innovation performance in India.”

“The idea is to create an indigenous model of development suited to Indian needs and development. India does not object to the concept of innovation but to the attempts being made by the proponents to link it with Intellectual Property,” he said.

“The TRIPS Agreement provides enough flexibility in devising a national IP policy and can promote cost effective innovation. Thus the patent threshold should not be so low that minor innovations get patented and create monopolies,” he added.

According to the WTO, Ecuador also objected to the inclusion of this item in the agenda. Bangladesh told Intellectual Property Watch he wondered what organic relationship existed between cost-effective innovation and the IP system.

EU Proposed Revision of its Tobacco Directive

Under other business, according to WTO, Nicaragua objected to an EU proposed revision of the Tobacco Products Directive. The objections were similar to the ones made in previous TRIPS Council meeting against Australia and New Zealand on plain packaging of tobacco products, the source said (IPW. WTO/TRIPS, 7 March 2013).

The revision sets to address the following main issues: regulation of products which do not contain tobacco but closely linked to smoking or tobacco consumption, such as electronic and herbal cigarettes, the labelling and packaging of tobacco products, additives such as flavourings used in tobacco products, and internet sales of tobacco products, according to the European Commission website.

The Dominican Republic, Honduras, Cuba and Zimbabwe joined the objection, the source said. They said such regulations would restrict trade unnecessarily and objected to Ireland’s announced plan to introduce plain packaging.

According to the WTO, Australia and New Zealand supported the EU.

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

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  1. […] Ecuador has also requested that the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), meeting from 10-11 October, discuss the contribution of intellectual property to facilitate the transfer of “environmentally rational technology.” Ecuador submitted a paper on the subject at the last TRIPS Council meeting (IPW, WTO/TRIPS, 13 June 2013). […]

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