A Brief Overview Of Current IP Issues At The WTO

Intellectual property issues may not be at the top of the post-Bali negotiations at the World Trade Organization, but there are many IP-related issues going on at the WTO. Below is an overview of some current and possible IP-related issues.

Some of the issues were mentioned at the 23-24 April Fordham IP Institute annual conference in New York by Wolf Meier-Ewert, counsellor in the WTO IP Division, who gave a short overview of recent developments at WTO. Others are based on Intellectual Property Watch reporting and available documents.

The WTO ministerial in Bali, Indonesia, in December injected a new energy into negotiations at the WTO, but this hasn’t translated into substantive progress on issues related to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Discussions on TRIPS-related issues “remain deadlocked,” Meier-Ewert said after his presentation. These include a multilateral register of geographical indications for wines and spirits, a proposed extension of higher-level GI protection to other products beyond wines and spirits, and a proposal to amend TRIPS to require disclosure of origin of genetic material in patent applications.

A WTO release after a 1 April informal meeting with the TRIPS Council chair, said that consultations with members showed that most were reluctant to proceed with the negotiations on the GI register. Members’ positions appeared not to have changed from past years, with divisions over whether the register should have legal impact, and whether it should be tied to the proposed GI extension and disclosure issues. This information was also reflected in the TRIPS chair’s 14 March report to the WTO General Council.

“The negotiations were described as complex and difficult by both sides of the debate, even within the mandate of the [Special Session, on the GI register],” the chair said in his report. “There were no concrete novel ideas on how to advance the negotiations of this group.”

“Most members were not eager to engage, nor saw engagement as possible, until the overall scope and balance of the post-Bali work program becomes clearer,” he said.

It will be seen over the course of the year how they fit into the Doha Round of trade talks at WTO. Members are in a “scoping exercise,” where committees establish priorities in the post-Bali world, Meier-Ewert told Intellectual Property Watch. [Note: meanwhile, efforts to expand GI protection have risen at the neighbouring World Intellectual Property Organization, see IPW,  Trademarks/Geographical Indications/Domains, 21 March 2014.]

Another issue is the extension of the transition period for least-developed countries to enforce intellectual property rights. WTO members last June agreed to extend the transition 8 years to 2021. There may be discussion about not allowing “rollbacks” by countries during the transition, meaning they cannot make changes to their IP laws that are less than TRIPS. While the previous extension had legally binding language, the new one does not (IPW, WTO/TRIPS, 7 June 2013).

Meanwhile, the transition for IP related to pharmaceutical products is 2016. Though not mentioned by Meier-Ewert, some say this might lead to new efforts by least-developed countries to look for another extension of that deadline (IPW, Developing Country Policy, 11 April 2014).

Yet another topic is the moratorium on use of TRIPS-related “non-violation” measures. The Bali ministerial extended the moratorium another two years, but work may be intensifying on the issue, Meier-Ewert said. One possibility could be to make a permanent moratorium, or members could decide to allow its use.

And it was also pointed out that while there has been a relative freeze in substantive negotiations, the WTO Council on TRIPS remains a place of lively debate for current issues. Recent proposals and debates have been on environmental technologies, supply chains, and sports and IP.

“The Council continues to provide much-needed transparency on policy considerations, even in the absence of substantive progress,” said Meier-Ewert. [corrected]

Another significant area of work for WTO that relates to IP rights is dispute settlement cases.

There are a number of cases that relate to IPRs, for instance, the current trademark and geographical indications case brought by five nations against Australia’s public health measure requiring plain packaging for tobacco products.

Closely watched are “cross-retaliation” cases, in which the winner of a case about something else is given the right to retaliate against a country’s IP rights. One such case involved Brazilian cotton against the United States, and another is Antigua and Barbuda’s case against the US over blocking of gambling services.

Another recent subject of dispute has been goods in transit. One involved European Union seizures of Indian generic drugs bound for developing countries like Brazil. The EU changed its enforcement directive to limit seizures to goods if there is a real threat of diversion to its market, and the case seems to have settled down.

Separately, there was a case in which government-funded research generating private patents was seen as an illegal subsidy. The case involved the US company Boeing’s large civil aircraft, and asked whether the allocation of patent rights to private entities (with government march-in rights that have never been used) under the Bayh-Dole Act is a subsidy. The European Union argued that Boeing was able to obtain valuable patents under contracts with government agencies like the Defense Department and the National Air and Space Administration (NASA). [Update: Knowledge Ecology International previously published an analysis of this case, here.]

Yet another area of activity at the WTO is coherence in trade agreements around the world. Regional, bilateral, plurilateral trade agreements have grown, giving rise to increasing complexity. Issues that arise at those levels can rise to the multilateral level. Non-violation clauses might be an example.

And the WTO provides technical assistance to members on TRIPS implementation and other issues.

[Update:]

Past Activity on GIs

Longstanding negotiations to set up the previously agreed register of wine and spirits geographical indications held by WTO members remains tied to broader negotiations of the WTO Doha Round, the WTO director general reported to member states in March.

In his 14 March report to the WTO General Council, Director General Roberto Azevedo said in his report on the Special Session of the TRIPS Council:

“Based on the interim Chair’s consultations earlier this week, it seems that negotiations on a register for wine and spirit geographical indications would depend on the relationship of this work to other TRIPS issues and the wider Doha Round.”

He also said that “some Members have expressed interest in recommencing the consultation process on TRIPS implementation issues. We need to look into this further.”

Also at the meeting, the new committee chairs for 2014 were announced. For the TRIPS Council, the chair will be Ambassador Mothusi Palai of Botswana.