Tobacco Packaging, Green Tech, University IP On Plate Of WTO IP Committee

Technology transfer for green technologies, and the compliance with international trade rules of plain packaging for tobacco products will once again be on the agenda of the World Trade Organization committee on intellectual property next week. A new agenda item on university technology partnerships is also expected to be discussed.

The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is scheduled for 25-26 February.

The draft agenda of the session includes a new item proposed by the United States on innovation and IP, in which the US is proposing to discuss university technology partnerships. For a number of sessions, the TRIPS Council has hosted discussions on innovation and IP. Last autumn, the European Union, Jamaica, Mexico and the US requested an agenda item on IP and sports (IPW, WTO/TRIPS, 16 October 2013).

Tobacco Plain Packaging

Cuba has also requested an agenda item on concerns about plain packaging for tobacco products and its compatibility with the TRIPS Agreement. This issue has been discussed a number of times in the TRIPS Council, after Australia decided to require plain packaging in its public health policy in 2011 (IPW, WTO/TRIPS, 16 June 2011).

Other countries have considered the same approach, such as New Zealand, which in 2013 announced it was working towards the introduction of a plain packaging regime for all tobacco products in New Zealand. The issue was further discussed at the March 2013 TRIPS Council (IPW, WTO/TRIPS, 7 March 2013). Ireland also announced last May a similar project, which was again discussed at the October session (IPW, WTO/TRIPS, 14 October 2013).

Plain packaging has been strongly supported by the World Health Organization. There are currently five ongoing disputes at the WTO brought by countries challenging the plain packaging measures adopted by Australia. Currently, Cuba, the Dominican Republic, Honduras, Indonesia and Ukraine have requested consultations.

Transfer of Green Technology

Ecuador is requesting once again that the TRIPS Council discuss the contribution of intellectual property to facilitating the transfer of environmentally rational technology (IPW, WTO/TRIPS, 13 June 2013).

In its communication paper [pdf] on the issue, Ecuador, asked for a review of Article 31 of TRIPS (Other Use Without Authorization of the Right Holder) in order “to determine which of its provisions may excessively restrict access to and dissemination” of green technologies.

According to an Ecuadoran delegate, the reason the item has been proposed again at next week’s TRIPS Council is because the issue is of prime importance to Ecuador. “It is an essential element in the fight against the harmful effects of climate change,” he told Intellectual Property Watch.

“The main objective is to reaffirm the existing flexibilities of the TRIPS agreement and then, if it is possible and with the consensus of all members, to review Article 31,” he said. It is important to establish a balance between developed and developing countries, he said.

At the last TRIPS Council meeting, Ecuador called for a declaration to be made at the Bali WTO ministerial meeting last December but, according to the delegate, this has not been possible because the issue continues to be debated in the TRIPS Council. So it was impossible to include any statement in the final Bali declaration, he said.

Next week, Ecuador aims to demonstrate that environmentally rational technologies are in developed countries and it is necessary to transfer them to developing countries. At the last TRIPS Council, many developing countries supported Ecuador, including Bangladesh, Bolivia, Brazil, Cuba, the Dominican Republic, India, Nepal, and Rwanda, he said. China reserved its right to respond to Ecuador’s proposal but gave its general support, he added.

Non-Violation Complaints

At the Bali Ministerial conference, a decision was taken to extend the moratorium on non-violation complaints, which relate to situations in which a country might feel deprived of its expected benefits by another country, even if no WTO agreement has been directly violated.

The decision, in accordance with the last TRIPS Council draft decision, was to extend a moratorium, in Article 64.2 of TRIPS on disputes based on non-violation complaints, until the next ministerial conference in 2015 (IPW, WTO/TRIPS 14 October 2013).

Members are expected to follow up on the decision next week. At the October session of the TRIPS Council, the chair proposed possible actions to find a way out of the cycle of extensions.

Other Standing Items

Also on the draft agenda are a number of items which have been on the agenda for numerous sessions, such as the review of TRIPS Article 27.3(b) on the patentability of plants and animals other than micro-organisms, the review of the implementation of the TRIPS Agreement, and the review of the application of the provisions of the section on geographical indications (Article 24.2).

The agenda also includes a follow-up to the eleventh annual review under paragraph 2 of the decision on the implementation of Article 66.2 (Least-Developed Country Members). Article 66.2 says developed country members “shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.”