At the two-day meeting of the World Trade Organization (WTO) council responsible for intellectual property rights, discussions first focused on two new submissions on issues related to the UN Convention on Biodiversity (CBD).

The relationship between the CBD and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was on the agenda of the TRIPS Council after the general agenda was discussed at a brief informal session in the morning.

The first paper (IP/C/W/469) was a communication from the United States entitled, “Article 27.3(b), relationship between the TRIPS agreement and the CBD, and the protection of traditional knowledge and folklore.” It was in response to a discussion paper (IP/C/W/469) previously submitted by Bolivia, Brazil, Colombia, Cuba, India and Pakistan, it says, which again was a response to an earlier US submission.

A US official said that the communication raises some new issues and responds to a recent submission by Peru (IP/C/W/459) citing cases of biopiracy by taking issue with its specific examples of the use of genetic resources in a way that indicates that all cases cited constituted illegal use.

The official said that some delegations are pushing for negotiations based on a written text but a number of countries, including the United States, argue they are not ready for that. The US official favoured first establishing national level systems governing access and the sharing of benefits of genetic resources and then if gaps were found in such systems, to then look for solutions.

Another submission was made in response to a communication previously made by Switzerland (IP/C/W/446), and was submitted by Cuba, Ecuador, India, Sri Lanka and Thailand. It aims to answer questions raised by Switzerland such as “the definitions of biopiracy and misappropriation, the interchangeable use of terms like biological and genetic resources, difference between country of origin and source of biological/genetic resources.” Another issue raised is compliance with the disclosure requirements.

The group said in its submission that it aims to answer such concerns and “thereby to alleviate the so-called ‘ambiguities’ surrounding the implementation issue.”

Implementation issues are dealt with in paragraph 39 of the declaration from the December ministerial in Hong Kong, covering “outstanding implementation issues” referred to in paragraph 12(b) of the Doha Ministerial Declaration from the WTO ministerial in Doha, Qatar in 2001. This covers the relationship between the CBD and TRIPS.

Two Brazilian officials said that for technical reasons, such as lack of time to send it back to its inter-ministerial group in the capital, Brazil was not part of the submission. But as a member of the so-called Disclosure Group, a group of countries who are seeking disclosure of origin of genetic materials in patent applications, it was supporting the submission’s main principles.

Now it is necessary to move to text-based negotiation by April, the Brazilian officials said, noting that there is another TRIPS Council meeting in June and the Hong Kong Ministerial Declaration has set a 31 July 2006 deadline for making progress on reviewing the CBD issue (IPW, WTO/TRIPS, 18 December 2006).

‘Intense’ Consultations with WTO

An Indian delegate said before the meeting that the Disclosure Group had been conducting “intense” consultations with the WTO Deputy Director General Rufus Yerxa to be able “to structure a good discussion” this week. There also have been some bilateral contacts between sides, the official said.

In addition to the council, separate consultations on CBD are being carried out by Yerxa, covering a developing country proposal for an amendment to TRIPS requiring patent applications to include evidence of prior informed consent to use local materials and of the sharing of benefits. One developing country official told Intellectual Property Watch that while the discussions on the CBD are more technical at the council, they are political at the Yerxa consultations.

The discussion of the CBD issue continued Wednesday but the chair of the council has indicated that he wants the council meeting to end after the morning session, sources said. After that consultations with Yerxa are expected to continue, sources said.

EU Enforcement Proposal

A previously submitted proposal (IP/C/W/448) from the European Union on bringing enforcement into TRIPS in order to make sure the rules are implemented on the ground may also be discussed at the council meeting. An official from an EU country said that when discussed before it had been an “initial comment” and they expected more substantive debate on the proposal at this meeting.

Some EU sources said it had waited to introduce enforcement aspects into TRIPS until developing countries also were expected to implement the 1994 agreement. But developing countries still believe it is premature, a source said.

The EU made a more detailed proposal following up on the enforcement proposal looking at border control in particular at the council meeting, which was at press time expected to be discussed during the morning session Wednesday, an EU official said.

Several sources said that in general it is probably not realistic to expect big outcomes from this meeting.