Officials Make Incremental Progress In TRIPS Talks

Officials negotiating to implement and update a 10-year-old agreement on intellectual property rights at the World Trade Organisation made a little progress toward that goal last week, according to official sources in Geneva.

While small gains on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are hard-fought, the outcome of several days of meetings of the TRIPS Council “provides some comfort to those who want progress,” a WTO official said afterward.

TRIPS and Public Health
On the TRIPS and Public Health agenda, the WTO official said there was a “slight sign of flexibility” on how to handle a long-standing disagreement over amending a TRIPS provision limiting the ability of countries unable to produce their own generic medicines to import patented drugs produced under compulsory license.

This is sometimes referred to as the “paragraph 6” issue because it falls under that paragraph of the 2001 Doha Declaration on TRIPS and Public Health, which overall aimed to ensure the TRIPS agreement does not prevent nations from acting in their public interest.

TRIPS Article 31(f) requires that products made under compulsory license must be “predominantly” for the domestic market, which limits the ability to export them. Paragraph 6 mandated that members address the possible negative impact of that requirement on countries needing to import products. In August 2003, WTO members agreed on a waiver for countries from the requirement until an amendment is agreed upon.

The TRIPS Council has set a deadline of the end of March to make some form of the waiver a permanent amendment. But last week the chair suspended the meeting to continue consultations with an eye toward resolution by the March 31 deadline.

During the Tuesday and Wednesday meetings in Geneva, debate focused on whether a proposed amendment by the African Group (African WTO members) would alter the substance of the August 2003 waiver. Agreement was not reached.

The African Group presented a paper making legal arguments in support of their earlier draft amendment of TRIPS Article 31, a WTO official said. In procedural wrangling, the group along with Brazil and South Korea, said a statement read out by the General Council chairperson at the time of the waiver’s adoption in 2003 should not be included in the amendment, even as a footnote, because it would give it legal status. Instead, the group proposed that a statement could be read out at the time of the amendment’s adoption.

The statement refers to several countries previously volunteered to use the waiver system only for emergencies or extremely urgent situations. They are: Hong Kong China, Israel, Korea, Kuwait, Macao China, Mexico, Qatar, Singapore, Taiwan, Turkey and United Arab Emirates. Concern has been raised about making their voluntary status legally binding by including the statement, sources said.

Switzerland argued that the statement must be included, but the United States, which previously proposed a footnote in the amended provision, now indicated it is open to other possibilities, the official said.

Separately in the meeting, the United States stated that the terms of its bilateral free trade agreements do not prohibit countries from using the TRIPS and Public Health solution effectively, the official said.

Biodiversity, Traditional Knowledge and Folklore
Another issue addressed in the meetings was the ongoing review of TRIPS Article 27.3(b), which covers the patentability of plant and animal inventions and the protection of plant varieties. The Doha Declaration calls for reviews of the relationship between TRIPS and the UN Convention on Biodiversity, the protection of traditional knowledge and folklore, and other issues raised by governments in the review of TRIPS.

WTO Director-General Supachai Panitchpakdi has asked several chairpersons to conduct consultations and report in May to the Trade Negotiations Committee, which guides the overall round of negotiations at the WTO. The General Council is to take an action in July.

According to a WTO official, during last week’s meeting a number of developing countries stressed the importance of consultations on the ties between remaining TRIPS implementation issues and the biodiversity convention. An example is the disclosure of origins of genetic material or traditional knowledge in patent applications. Canada, Japan and Korea called for this to be discussed at the World Intellectual Property Organisation, a proposal Brazil, India, Peru and others objected to as “forum shopping.” The European Union and United States generally opposed changes related to TRIPS and the biodiversity convention.

The chair initiated consultations, which has the effect of bringing this group of subjects more closely within the Doha Development Agenda, the WTO official said.

Also at the meeting, three new papers were tabled kindling intensified discussions, the official said. Peru reported on its experience fighting biopiracy using case studies, and stressed the need for concrete solutions to the problem of misappropriated genetic resources and biopiracy. It argued that the lack of obligation to state the origin of resources in a patent is a priority implementation issue to be addressed in the Doha Development Agenda.

Brazil, India and others offered a paper on the obligation to disclose evidence of benefit sharing. And Brazil and India responded to a November 2004 paper from the United States. Several developing countries, including China, supported the papers, while Australia, Canada, Japan and the United States remained opposed to amending TRIPS relative to the biodiversity convention. Japan repeated its view that disclosure of genetic resources should be discussed at the World Intellectual Property Organisation, the official said.

Geographic Indications
The issue of geographic indications for wines and spirits (such as reserving the term “champagne” for products from Champagne, in France) appears stalled. In a special session on Friday there was no movement on either side of issue despite a lengthy debate on a new draft decision circulated by Canada, Chile and others, a WTO official said. The meeting ended with disagreement over which document should provide the basis for future negotiations. The European Union and Switzerland backed a draft text prepared by the chairperson on 16 April 2003, while the new draft has 12 supporters, including Australia, Mexico, Taiwan and the United States.

The new proposal, which draws on previous submissions, loosely defines the notification and registration system as voluntary and with limited obligations for countries, whereas the European Union and Switzerland want all WTO members to protect the registered terms and be subject to obligations.

There also was little progress in separate Thursday consultations led by WTO Deputy Director-General Francisco Thompson-Flores on extending the high level of protections given to wines and spirits to other products, sources said. Bulgaria, the European Union, and Switzerland are pushing for the extension, but were opposed by Australia, Canada, Chile, the United States and others. The issue is expected to come up again in April.

Remaining meetings of the TRIPS Council in 2005 are tentatively scheduled for 14-15 June and 25-26 October.