TRIPS Council Annual Report: Extension Of Health Amendment Deadline Looms Again

The World Trade Organization General Council, the WTO’s highest-level decision-making body in Geneva, on Tuesday received the annual report for the WTO committee on intellectual property rights. In it were descriptions of the past year’s IP debates and recommendations for extensions of deadlines.

A proposed extension of an end-of-year deadline for members to adopt a public health amendment aimed at helping small economies import needed medicines was put off till the General Council’s December meeting, according to a source.

The General Council forwarded to the 30 November to 2 December ministerial meeting in Geneva the proposed extension of a moratorium on challenging other WTO members under intellectual property rules for actions not in violation of the WTO. WTO members also have recommended a two-year extension of a moratorium on customs duties on electronic commerce. (IPW, WTO/TRIPS, 6 November 2009).

The December ministerial is not expected to directly address negotiations, as the Doha Development Round launched in 2001 is on its own track. But WTO Director General yesterday said the ministerial can “send a very clear and strong political message that concluding the DDA in 2010 remains a priority.”

The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) submitted its annual report for 2009, IP/C/52, dated 5 November, to the Council’s 17 November meeting. The report followed the final 2009 TRIPS Council meeting on 27-28 October.

An addendum, IP/C/52/Add.1, calling for the non-violation moratorium extension was filed after a 6 November continuation of the TRIPS Council meeting for that purpose only.

Both documents are included by document number in the General Council proposed agenda, linked here.

The TRIPS Council report contained a recommendation to extend the deadline for members to adopt the 6 December 2005 public health amendment to the TRIPS agreement to better allow countries lacking pharmaceutical manufacturing capabilities to import cheaper medicines produced under compulsory licence by another country.

Previously, medicines made under compulsory licence, which allows an exception to patent rights under WTO rules, could only do so for predominantly domestic consumption. The 2001 Doha TRIPS and Public Health Declaration mandated members to solve the concern about countries with no manufacturing capacity, and in August 2003 a compromise waiver to TRIPS rules was reached. In December 2005 around the time of the Hong Kong ministerial, WTO members approved the waiver as the first-ever amendment to the 1994 TRIPS agreement.

But in the ensuing time, only one transaction – between Rwanda and Canada – transpired, and was found by the Canadian exporter to be too difficult to repeat. Public health activists have said the process is too complex for small countries to pursue.

Two-thirds of the WTO membership must accept the amendment for it to enter into effect. The deadline for governments to ratify the amendment was extended once already, on 18 December 2007, to 31 December 2009. To date, 25 countries plus the European Communities representing 27 more nations, have accepted the amendment. The latest was Zambia, in August. The WTO-kept list of countries signing up is here.

Separately from the extensions, the annual report and the report to the General Council by the chair of the Trade Negotiations Committee gave updates on progress on TRIPS-related issues. These include mandated creation of a register for geographical indications (GIs – products names derived from places or specific characteristics), a proposed extension of high-level GI protection to products other than wines and spirits, and a proposed TRIPS amendment to require the disclosure of origin of genetic material in patent applications, intended to guard against biopiracy, which comes up in the analysis of TRIPS and the UN Convention on Biological Diversity (CBD).

The annual report also updates progress on other issues such as developed countries’ ensuring that adequate technology transfer to developing countries is occurring.

On the register, the TNC chair – WTO Director General Pascal Lamy – said legal effects and consequences appear to still be the “core” of the discussions.

On the GI extension and CBD issues, the chair said: “We are plainly not on the verge of a breakthrough either on the modalities of how we are to take forward these issues beyond the consultation process nor on the content of what a substantive outcome would look like.” But Lamy said a stocktaking would come after the next consultation on the issues scheduled for 9 December. There, members will work through the second half of thematic clusters of questions posed by participating members.

Then, he said, “frankly, we will have to consider realistically where we stand, what we have learned from the process so far, how we can harvest in a usable form the understanding gleaned from these consultations, and then how to build on this foundation in the new year.”

The report to the General Council by the chairman of the Trade Negotiations Committee is here.