TRIPS Council Issues Still Alive For WTO Ministerial

The World Trade Organization committee handling intellectual property issues finished four days of meetings with minimal progress in real terms, but kept several issues alive for the December WTO ministerial in Hong Kong.

The WTO Council on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) met from 25 to 28 October.

Issues still in the mix include disclosure of the origin of materials in patent applications, a request by least-developed countries to extend their date of implementation of the TRIPS agreement, and upgrades to the protection of geographical indications, which are products named for locations (see related story). Another issue potentially on the table is to make a permanent amendment to the TRIPS on public health, as African nations have not taken their proposal out of play (IPW, 27 October 2005).

A related issue of a new effort by the United States, Japan and Switzerland to examine China’s judicial cases involving intellectual property rights slipped off the TRIPS Council agenda where it was related to the annual transitional review of China’s IP policy (IPW, 26 October 2005). The issue has gone further into the bilateral level, according to one delegate. It is likely to be addressed in the 4 November meeting in Beijing of the intellectual property rights group of the US-China joint committee on trade issues, followed by the meeting of the full joint committee on 8 to 9 November, the source said.

A proposal to negotiate in Hong Kong for an amendment to the TRIPS agreement to require patent applications to include a disclosure of the origin of biological materials and traditional knowledge remains in play for Hong Kong, according to sources. The issue is being pushed by Brazil and India, and is strongly opposed by the United States and Japan.

Brazil and India sent a letter to WTO Director General Pascal Lamy after he failed to mention the issue when he first took office this fall, and he then mentioned it, effectively putting it back in play, a delegate said.

A compromise European Union proposal seen as “minimalist” by proponents of an amendment still is on the table as well, sources said. The proposal would call for additional information on origin to be filed with the application but is seen by proponents as “lacking teeth,” one delegate said.

Peru, which is seeking protection against biopiracy, submitted a paper and described in detail the case of a native berry called camu-camu that could have been helped by disclosure of origin. The United States, which prefers solving disputes through contractual agreements, came back with a case involving turmeric, in which disclosing India as the origin did not prevent an inappropriate patent from being filed (the patent was later withdrawn), according to participants. India answered that the amendment is still needed.

The disclosure issue is related to consideration of the relationship of WTO to the Convention on Biological Diversity. Progress on these issues apparently has been linked to the extension of protection of geographical indications beyond wines and spirits by the WTO secretariat. Rufus Yerxa, deputy director general responsible for TRIPS issues, held a consultation on both issues with members on 26 October. But a delegate said on 28 October that the EU is no longer interested in a deal between these issues, as it might only increase US opposition to the issue it wants, geographical indications (GIs). The US opposes both the disclosure and the GIs issues.

TRIPS Implementation Extension Still In Question

There was no resolution on an issue of key importance to the smallest developing countries, a proposal on behalf of least-developed countries from Zambia to extend least-developed countries’ implementation of the TRIPS agreement from the end of 2005 to 2020. The issue will be kept open while consultations are held. A WTO official said the proposal will be brought back on the agenda when the meeting is reconvened. It was already suspended to allow informal consultations on TRIPS and public health.

Several larger developing countries voiced their support for the extension proposal but several developed countries, including Japan, Switzerland and the United States, said each country seeking an extension should be treated individually in order to assess the problems each is facing. The European Union and Norway also did not agree with the proposal, calling for more time.

EU Enforcement Proposal Put Off

Also discussed on Friday was an EU proposal for the TRIPS Council to review enforcement of obligations under the TRIPS to find ways to help fight problems of piracy and counterfeiting. The issue does not appear to be possibly included in Hong Kong, but rather will be taken up again after Hong Kong.

Several developed countries such as the United States and Japan showed general support for the EU proposal but indicated that more time would be needed to consider the details.

The proposal met with significant opposition from developing countries including Argentina, China, Egypt, and India. They argued that enforcement at the WTO is handled by the Dispute Settlement Body, and that the World Intellectual Property Organisation (WIPO) set up an advisory committee on enforcement in 2002. One developing country delegation argued the WIPO committee specifically excluded norm-setting, and the EU proposal includes benchmarks and best practices, which could be considered norm-setting.

An EU official said afterward that the proposed mechanism would not specifically name countries, and so would not be like the US Special 301 process for listing countries seen by the US government as inadequately protecting US intellectual property rights.

On another issue, delegations held their positions on whether to renew a moratorium on non-violation complaints, which would allow countries to challenge others even though they had fulfilled all of their WTO obligations. The United States, apparently joined by Switzerland, continues to want an expiration of the moratorium in Hong Kong. The majority of members want the issue off the TRIPS Council agenda.

Several delegates said that although it could be seen as the only potential item in the TRIPS Council for a negotiating trade-off with the United States, the potential impact is too unknown. “It’s too scary,” one delegate said. The TRIPS Council will not make a recommendation on this issue, sources said.

Technical Assistance On IP Under Scrutiny

In the discussion of countries’ technical assistance, a debate broke out over the development agenda at WIPO, as Argentina and Brazil argued that the proposed substantive reform of WIPO under their 2004 development agenda proposal reaches well beyond technical assistance. They were responding to a paper put forward by WIPO that suggested its technical assistance includes advising countries on the use of flexibilities within TRIPS. Some delegations argued that WIPO’s assistance tended to focus on lesser issues such as the use of computers, one participant said.

Also on technical assistance, one delegate said India took issue with claims made by Australia about technical assistance it provided as stated in its report to the TRIPS Council. India charged that Australia was claiming an advocacy trip to India made by a person was technical assistance, and called into question other claims by Australia.

The tentative TRIPS Council meeting dates for 2006 are: 14-15 March, 14-15 June, and 24-25 October.