TRIPS Council To Discuss LDC Waiver Extension, Innovation This Week

The World Trade Organization committee on intellectual property and trade this week will discuss a range of issues including a request by least-developed countries to extend the time before they are required to enforce rules on IP and pharmaceuticals. Other issues include a discussion of IP and innovation, and a moratorium on complaints about government actions that do not violate WTO rules but may harm trade.

The WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) is scheduled to meet on 9-10 June.

The current waiver on IP protection for pharmaceutical products by WTO least-developed countries (LDCs) expires 1 January 2016. Bangladesh, on behalf of WTO least-developed countries, submitted the request to extend the waiver earlier this year (IPW, WTO/TRIPS, 25 February 2015). The countries have extended the waiver before, but this time they are seeking to make it indefinite, until the point at which they are no longer considered LDCs. In their view, TRIPS states that the WTO membership shall accept their request for extension if they make one.

There have been reactions to the extension request, with an outpouring of support for the extension, including from a supplier of essential medicines (IPW, WTO/TRIPS, 30 March 2015), at least two United Nations agencies (IPW, WTO/TRIPS, 22 May 2015), and more than 140 civil society organisations worldwide (IPW, WTO/TRIPS, 29 May 2015). The northern brand-name pharmaceutical industry, meanwhile, has asked for clarification on the request as it relates to a broader extension given LDCs until 2021 (IPW, WTO/TRIPS, 1 May 2015).

The 1994 TRIPS Agreement is here.

Another agenda item at the TRIPS Council meeting is entitled, “Intellectual Property and Innovation: The Role of Intellectual Property in Financing Innovation.” No further information was available at press time. This was requested by the United States and Switzerland. The US has spearheaded a series of informational discussions on innovation at the TRIPS Council in the past couple of years.

In addition, there may be a discussion about extending a moratorium on non-violation complaints (complaints not relating to any direct WTO rules infringement) relating to intellectual property-related disputes. Sources have indicated that the majority of WTO members are in favour of the indefinite extension, while the United States and Switzerland are opposed.

According to some sources, Japan holds a middle-ground position on the non-violation complaint issue. It was said at the last TRIPS Council meeting in February that Japan was seeking to have a discussion on the modalities and scope of such non-violation complaints under TRIPS.

Also on the agenda this week is a review of the application of provisions of the section on geographical indications under Article 24.2. TRIPS Article 24.2 states:

2. The Council for TRIPS shall keep under review the application of the provisions of this Section; the first such review shall take place within two years of the entry into force of the WTO Agreement. Any matter affecting the compliance with the obligations under these provisions may be drawn to the attention of the Council, which, at the request of a Member, shall consult with any Member or Members in respect of such matter in respect of which it has not been possible to find a satisfactory solution through bilateral or plurilateral consultations between the Members concerned. The Council shall take such action as may be agreed to facilitate the operation and further the objectives of this Section.

Countries that use the GI system have sought for years to advance the commitment made by all members to set up a register of GIs, and also to discuss extending higher level GI protection to products other than wines and spirits.

It is unclear whether the recent conclusion of a new Act on the protection of geographical indications at the World Intellectual Property Organization (IPW, WIPO, 21 May 2015) will come up at the TRIPS Council. The Act will set up a GI register and extends higher level protection to non-agricultural GIs.

An issue that does not appear on the agenda but has occasionally come up under “Other business” is the dispute settlement challenge to Australia’s tobacco plain-packaging law. It came up at the last TRIPS Council (IPW, WTO/TRIPS, 25 February 2015).

Separately, there are other issues that regularly appear on the TRIPS Council meeting agenda, such as the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD), and technological cooperation and capacity-building.

TRIPS issues are part of the bigger negotiation taking place at WTO right now under a July deadline, in preparation for the December ministerial in Nairobi.