Intellectual property issues related to biodiversity were the topic of two different sessions at the World Trade Organization on 15 March with minimal progress, according to participants. But the second session, consultations with a senior WTO official, seemed to sharpen the focus of the debate, they said.

During the morning, the formal Council of the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) continued its meeting from 14 March. This week, proponents of an amendment to TRIPS to require disclosure of the origin of genetic resources in patent applications, stepped up their efforts, according to sources.

Then in the afternoon, informal consultations were carried out with WTO Deputy Director General Rufus Yerxa on the relationship of WTO rules to the Convention on Biological Diversity (CBD) and other related issues. These consultations are taking place in parallel with the TRIPS Council and will continue on 16 March looking at geographical indications (GIs), sources said.

The consultations with Yerxa on disclosure have been tentatively scheduled to continue next week, possibly on 23 March, sources said.

Consultations under Yerxa have been set up as part of the current Doha Development round of trade talks at the WTO which started at the WTO ministerial in Doha, Qatar in 2001 and are targeted for completion by the end of 2006.

As there is a single undertaking in these talks, meaning that “nothing is decided until everything is decided,” some sources argue that the CBD discussions, for example, in this forum have more weight than the TRIPS Council.

Sources note that while the technical issues related to genetic resources were discussed in the council, the Yerxa consultations are more political.

Increased Push for TRIPS Disclosure Amendment

Countries comprising a Disclosure Group this week increased their push for an amendment to TRIPS, according to participants. By disclosure, Peru, India, Brazil and others want evidence of prior informed consent, benefit sharing and disclosure of origin of genetic resources related or not to traditional knowledge, an official said.

The discussions Yerxa discussions were much more focused than the morning session on CBD as only disclosure had been discussed, the official said. As the December Hong Kong WTO Ministerial Declaration stated that these discussions should be “intensified,” it was needed to have a special representative of the director general to focus the discussions, he said, noting that Yerxa is to report back to the WTO General Council.

The problem was, however, that while Yerxa was the referee, “some of us want to play soccer while others want to play rugby,” the official said.

Argentina Splits from Disclosure Group, while Norway Favours Amendment

One of the most contentious interventions at the consultations was when an Argentinian official took the floor and said that Argentina was against a multinational disclosure scheme, according to two developing country officials. The Argentinian official told Intellectual Property Watch that this was not a new position as Argentina had argued for many years that it was not opposed to disclosure in patent applications but that it was against a mandatory international system. The official said that there should be an option, adding that disclosure is not a requirement in Argentina.

The officials indicated that there could be other developing countries questioning disclosure, although most developing countries have appeared to be supportive.

A Norwegian delegate said that Norway had indicated in the consultations that it supported an international mandatory disclosure requirement in patent applications and thus the amendment of TRIPS. But Norway does not think that there is a contradiction between the CBD and TRIPS, as India argues, but that an amendment of TRIPS would make patent applications better.

The official said Norway was the only developed country favouring a change of the TRIPS agreement on disclosure.

The European Union supports disclosure but it does not want it to be a legal requirement, and Switzerland wants the issue to be dealt with at the World Intellectual Property Organization (WIPO). Norway and Switzerland are not EU members.

CBD Consultations Guided by Key Questions

In advance of this week, Yerxa has consulted the WTO member states and prepared a list of eleven questions divided into three sections which was the basis for the 15 March discussions. The list had been faxed out to the delegates in advance, the WTO said.

According to sources, the questions are divided into three parts: Disclosure and why it is necessary, enforcement of access and benefit sharing schemes, and other issues. The document is entitled, “Non-exhaustive list of possible topics for further consultations” and includes questions such as:

- Does the patent system, as presently constituted and applied, provide effective safeguards against the grant and maintenance of erroneous patents?

- Are disclosure requirements of the sort proposed necessary or helpful for reducing the existence of erroneous patents?

- Can the effective functioning and the enforcement of national access and benefit-sharing regimes be secured on the basis of national legislation, including contracts, without a disclosure requirements in the patent system?

- How would the national-based approach and the various disclosure proposals contribute towards achieving these aims?

GIs Up Next

On 16 March, the consultations under Yerxa will focus on extending the protection for geographical indications (products named for places) beyond wines and spirits. For this a document with some 90 questions has been prepared for the delegates in advance, the WTO said. There also will be a “special session” of the TRIPS Council on the proposed establishment of a multilateral register for wines and spirits.

The relationship between the CBD and the TRIPS agreement was the first topic of the TRIPS Council on 15 March, carried over from the first day of the council, 14 March (IPW, WTO/TRIPS, 15 March 2006).

Not discussed according to sources was whether to extend a moratorium on “non-violation and situation complaints,” under which WTO member states can complain about another member’s action that they argue harm their trade in goods and services even if it does not violate any WTO rules. Thus the decision to extend the moratorium reached at the WTO ministerial in Hong Kong in December 2005 was not changed and the issue will remain on the TRIPS Council agenda, a source said (IPW, WTO/TRIPS, 18 December 2005).

EU Enforcement Proposal Still Alive

Also in the council meeting, a proposal submitted by the European Union on bringing enforcement mechanisms into the TRIPS Council was discussed but was received “quite aggressively” by countries such as Brazil, China and Argentina, a participant said, adding that India also had had some concerns. Opponents argue that mechanisms for enforcement are already set out in TRIPS, and that the EU is calling for new measures.

Switzerland and Japan, however, supported it, according to an EU official, with Australia and Canada wanting to debate it further.

For this week’s meeting, the EU put forward a communication on customs enforcement. The enforcement issue likely will stay on the TRIPS Council agenda as the EU has indicated it wants it to. Procedurally, the EU may keep it on the agenda, a WTO source said.