EU Gets Little Support For Enforcement Proposal at WTO; CBD Issue Unresolved

The European Union got little support for its proposal to add further enforcement measures into international trade law on intellectual property at a World Trade Organization (WTO) meeting on 15 June, according to participants.

This was the last day of the 14-15 June meeting of the Council on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Among other issues on the agenda was the relationship between TRIPS and the Convention on Biological Diversity (CBD). It had been discussed in a special session earlier during the week (IPW, WTO/TRIPS, 15 June, 2006).

The EU’s latest proposal on enforcement (IP/C/W/471) proposes “an initial focus on border measures that might lead to a code of good practices” to fight piracy and counterfeiting, an informed source said.

Sources said that while Australia, Canada, Japan, Switzerland, Taiwan and the United States were among the developed countries that supported the EU proposal in the council meeting, other developed countries requested more information from the EU. Australia and Switzerland also warned against duplication of work at the World Intellectual Property Organization (WIPO).

Developing countries such as Argentina, Brazil, China and India opposed the proposal, saying it would distract the current WTO trade talks, which are supposed to focus on development.

A Chinese official told Intellectual Property Watch that the TRIPS Council is “not the right time or right place” to discuss enforcement, and China is against adding another agenda item to the council. This is “waste of time,” the official said.

Separately, the EU said in the meeting that it is about to “implement fully” the decision from August 2003 that makes it possible for countries to export medicines under compulsory license to countries that have inadequate production capabilities, the informed source said (IPW, WTO/TRIPS, 6 December 2005).

CBD – To Be Continued

In the TRIPS Council, which is chaired by Ambassador Trevor Clarke of Barbados, the CBD discussion continued but this time under TRIPS Article 27.3(b) on the patenting of plants and animals, a proposed requirement for the disclosure of origin of materials in patent applications and the protection of traditional knowledge, a source said.

One participant said that in the TRIPS Council there was no movement in positions, and Brazil had taken issue with the fact that many countries merely sharing their national experience. Brazil had indicated that the TRIPS Council was not a place for this but rather for negotiations, referring to the negotiation of the TRIPS agreement itself.

The participant also said that a lot of countries are calling for text-based negotiations, meaning that the discussions should be based on a written document. The proposals that have been put forward are all in written form but they are being presented as possible ideas, and no negotiation has started yet, the source said.

In the special session Japan and Norway had introduced CBD proposals and these were re-introduced and discussed in the council as well, sources said. Norway proposes mandatory disclosure of origin or source of genetic material or traditional knowledge in patent applications, while Japan would like to see a database on genetic resources be set up at WIPO.

A number of WTO member countries also asked to have their statements made in the special session be recorded in the TRIPS Council, the informed source said.

One least-developed-country source said that in the special session on 14 June, Korea was represented by the head of its patent office. The Korean official took issue with the Norwegian proposal, saying that disclosure of origin would put an administrative burden on the patent system, lead to delays and would imply extra costs, the source said.

UNCTAD Paper Presented

The United Nations Conference on Trade and Development (UNCTAD) also presented a report at the TRIPS Council, a participant said.

The report, entitled “Analysis of options for implementing disclosure of origin requirements in intellectual property applications,” was published earlier this year, commissioned by UNCTAD and written by Carlos Correa of the University Buenos Aires and Joshua Sarnoff of American University in Washington, DC, a source said.

The study is a comprehensive analysis of options in terms of disclosure of origin and the authors conclude that the best way to ensure compliance with the CBD requirements on disclosure would be to change the TRIPS agreement, the source said. A participant said that India praised the report in the TRIPS Council meeting.

The United States, however, said that the authors were known for being long-time advocates of disclosure, and that it would be useful for UNCTAD to also explore other approaches, the participant said.

An EU official told Intellectual Property Watch that the European Union had had a CBD proposal at WIPO for several years and that it went “50 or 60 percent” toward the proposal by Brazil and India on amending TRIPS (IPW, WTO/TRIPS, 7 June 2006).

The EU also is calling for making disclosure of origin mandatory in patent applications, the source said, but believes that issues such as prior informed consent and benefit sharing belonged to the CBD.

The next formal TRIPS Council meeting is scheduled for 25-26 October, according to the WTO.