US, Andean Nations Narrow Differences On IP In Trade Talks

By Martin Vaughan for Intellectual Property Watch

Andean countries in late November narrowed differences with the United States over intellectual property protections in negotiations over a US-Andean bilateral free trade agreement, but divisions over market access for agriculture have likely delayed a final agreement until next year, at least for Colombia and Ecuador.

Peruvian and US negotiators, however, are tentatively scheduled to meet next Monday and Tuesday in Washington to see if they can close out negotiations – potentially pushing Peru ahead of its Andean partners. A teleconference to lay the groundwork for next week’s meeting will take place today, according to an official.

During negotiations the week of 21 November in Washington, Andean countries proposed linking their own demands for provisions on biodiversity to acceptance of US demands for stronger patent protections. The US is seeking to include obligations to protect pharmaceutical test data for name-brand drugs, for five years, and 10 years for name-brand agrochemicals. Andean countries signaled they would accept those periods of data exclusivity if the US agrees to first-of-their-kind provisions that acknowledge the role of indigenous cultures in the preservation of plant life, according to an Andean official.

Andean countries are pressing for such measures as requiring prior informed consent from indigenous communities by researchers seeking to patent genetic processes.

The acceptance of the five-year data exclusivity for drugs, although tied to US acceptance of biodiversity provisions, nonetheless marks a shift for the Andean countries. They had for some time been advancing a counter-offer of three years of data protection for pharmaceuticals, but the US showed no flexibility with regard to its proposals on data protection, sources said. That counter-offer was withdrawn during the last round of talks, sources familiar with negotiations said.

However, Andean countries are seeking exceptions from the data protection requirements for cases of health emergencies and pandemics, these sources said.

It was not clear whether the US will go along with such an exception – US officials have argued that such flexibility is already available under provisions related to the World Trade Organization Agreement on Trade-Related Intellectual Property Rights (TRIPS). It was also not clear how far the US will go in accepting provisions on traditional knowledge or biodiversity. A spokeswoman for the Office of the US Trade Representative said officials are not commenting on the specifics of negotiations because the talks are at a sensitive stage.

The Andean official said Colombia and Peru have also moved in the direction of the United States on another patent issue, the so-called “linkage” issue. The US wants to make marketing approval of new drugs contingent on the existence of no prior patent, and has sought to require countries’ health ministries to verify that marketing approvals do not clear the way for infringing upon existing patents. The official suggested that those obligations could be crafted in such a way to require the applicant seeking marketing approval to submit documentation showing that there was no existing patent, so that the burden will not be placed on the health ministry.

However, differences on intellectual property provisions remained too large for Colombian and Ecuadorian negotiators, who withdrew from the talks citing sticking points in the IP rights and agriculture chapters. Peruvian officials said they will keep working until just before the Hong Kong WTO ministerial meeting, scheduled for 13-18 December, to see if an agreement can be struck.