TRIPS Council To Resume Talks On 29 November 25/11/2005 by Tove Iren S. Gerhardsen for Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)The World Trade Organization next week will reconvene a suspended meeting on unresolved intellectual property issues that sources say have moved little in the final weeks before the 13-18 December ministerial in Hong Kong. The 29 November meeting will consider agenda items related to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that have been “left open,” according to the meeting notice. Issues to be discussed include: making permanent a TRIPS waiver allowing poor countries better access to medicines; a review of an exception to patenting for plants and animals; a requirement to disclose the origin of source material in patent applications; and a request by the smallest economies for more time to implement the TRIPS agreement. The first item is the implementation of paragraph six of the Doha Declaration on the TRIPS agreement and public health from the WTO ministerial in Doha, Qatar in 2001. In August 2003, a temporary agreement was reached on paragraph six, giving a waiver to WTO members to import cheaper generic medicines made under compulsory license. Negotiators already missed a mandated deadline to make this TRIPS waiver permanent, but do not have to address it in Hong Kong. African ministers have discussed the public health issue this week at a ministerial in Arusha, Tanzania, but a developing country official said Thursday that “on TRIPS and public health there is no decision.” The meeting ends on 25 November. The second set of issues to be discussed relate to the patentability of life forms, where a review was mandated under TRIPS Article 27.3(b); proposals to require the disclosure of origin of material in patent filings; and the protection of traditional knowledge and folklore. The disclosure of origin issue is linked by a Doha Declaration mandate to examine the relationship between the TRIPS Agreement and the 1992 Convention on Biological Diversity (CBD). The developing country official said that on CBD issues, there was so far “no convergence” but “a demand” to send a report to the General Council. Extending The Implementation Deadline For LDCs Thirdly, discussion will take place on a request for an extension of the transition period for least-developed countries for implementing the TRIPS agreement. The original deadline was end of 2005, but the LDCs have made a joint request to extend it 15 years for economic, administrative and financial reasons, an least developed country official said. The United States has countered with an offer of a five year extension, the least developed country source said. The US has offered technical assistance which is linked to, and conditioned on, implementation, the source said. The source said, however, that at the moment the discussions are “fragmented” and that next week’s meeting should provide clarification. There are 32 WTO members on the list of least developed countries: The developing country official said that some agreement had been reached on the five-year proposal but with conditions. Who’s In Charge Of What? TRIPS Council Chairman Choi Hyuck of Korea has called the TRIPS Council meeting, which will take place on Tuesday. The meeting was suspended from a 26-28 October session after insufficient progress was made on topics. Choi has responsibility for the issues under the TRIPS Council, including the relationship of CBD to TRIPS, traditional knowledge, Article 27.3(b) review, TRIPS and public health, and the LDC implementation extension. But the CBD talks have also been discussed in another, higher-level group of consultations chaired by WTO Deputy Director General Rufus Yerxa. He is overseeing CBD and discussions on extending protection for geographical indications (GIs) beyond wines and spirits, though not a register for GIs on wines and spirits (IPW, TRIPS/WTO, 24 November). The reasons for the division of work are “procedural rather than substantive,” a WTO official said. The chairman of the special session on the GI register has sent a report to the Trade Negotiation Committee (TNC) (IPW, WTO/TRIPS, 24 November). The TNC was set up by the Doha Declaration which in turn assigned it to create subsidiary negotiating bodies to handle individual negotiating subjects, according to the WTO. The TNC is under the authority of the General Council. The GI register is the only implementation (of present agreements) issue that is officially a negotiation, a WTO official said. Other IP issues such as GI extension and CBD are “outstanding” implementation issues, and “members differ over whether they are negotiations at all,” the official said. However, these issues appear to still have to be reported to the TNC, but that is a matter of intense debate, said. On the GI extension issue, the talks are pretty much where they were two to three years ago, according to a European Union official who said the parties are “as far apart as ever.” The official said that the EU had tried to accommodate the differences by proposing exceptions to its proposal in June this year, but charged that these had not been met out of maneuvering from the opponents since the issue is linked to the overall agriculture negotiations. Developing country officials said the EU has tried to present the GI extension issue as favourable to developing countries, but that many developing countries have opposed it. The EU official said that the proposal originally came from countries such as India and that the issue was supported by developing countries as well, and therefore was not a North-South issue. India Presents Updated CBD Request Separately, at a WTO meeting on CBD issues on 21 November, India presented an updated version of a paragraph it wants to have incorporated into the Hong Kong ministerial declaration linking the CBD with the WTO patent system. This would make it mandatory for countries patent applicants “to disclose, as a condition for grant of the patent, the source and country of origin of the biological/genetic material and associated traditional knowledge used in their invention,” the paragraph states. A participant at the meeting said afterward that the proposal got the support of “a fair number of developing countries,” while the positions of the opponents, such as Australia, Canada, Japan, and the United States, remained the same. The opponents also argued that the CBD issue should not be part of the Hong Kong agenda. But the countries did, however, say they were prepared to continue “substantive discussions” in the TRIPS Council, the participant said. India and Brazil and 12 other developing countries (some are China, Colombia, Cuba and Thailand) forming the “disclosure group” hope to have the issue settled before Hong Kong. The announcement of next week’s meeting may have boosted this hope. The paragraph tabled by India has been presented before, but Atul Kaushik, first secretary of the Indian mission to the WTO, said its language has been updated. The Indian proposal argues the issue has a negotiating mandate. But the United States continues to oppose a negotiating mandate, arguing that there is no conflict between the CBD and TRIPS, Kaushik said. Sources indicate that there was no change in delegation’s positions at the meeting, but Kaushik said that the pressure now is on the opposition to “start de-politicising the issue and express genuine concern about what is wrong with the paragraph.” The Indian proposal calls for patent filers to obtain prior informed consent, commit to benefit sharing, and submit evidence that the requirements have been adhered to. The proposal calls for these requirements to be inserted into the TRIPS agreement through an amendment, with negotiations “conducted in the TRIPS Council in special session/TNC,” to be completed by September 2006. Kaushik says it is mainly the United States, along with Japan, that opposes the idea of linking CBD to TRIPS. Switzerland argues that the issue belongs in the patent treaties of the World Intellectual Property Organisation. The European Union is ready to look at amendments to the TRIPS agreement but wants the issue of disclosure of origin to be kept outside of the patent system with no legal consequences, while a group including Australia, Canada and New Zealand is “struggling in the middle” arguing that they are not convinced by the arguments of developing countries, Kaushik said. The US favours implementation of these issues at the national level and on a “contractual basis,” going case-by-case, Kaushik said. But India has replied that a number of countries that already have this in their national laws have failed to prevent international misuse and that the material has been patented in countries with no requirements for disclosure. If there are no international level rules, once the resources are out of India, for example, they are free, Kaushik said. Moreover, India has objected to the contractual approach, arguing that it would be “inequitable,” as these deals are often signed between multinational companies and local communities. Sharing does not exist in this scenario, Kaushik says. Correction: In the 24 November story, “No Progress On GI Register As Issue Moves To Higher Level,” Indian official Atul Kaushik was accidentally misquoted. He actually said, “the opposition was more polarised on the GIs issue than the CBD issue with the EU and some developing countries (but with less support than the EU had hoped for) supporting GIs and the US and the new world opposing it.” Also, the article suggested that the TRIPS and public health, CBD and GI extension issues will have to report the General Council. In fact, the issue is under debate, and they may be reported to the GC and the TNC. 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