Quiet TRIPS Council Meeting Expected; Enforcement Push Continues

By Tove Iren S. Gerhardsen
Next week’s meeting of the World Trade Organization’s intellectual property committee is expected to be “business as usual,” continuing work on difficult topics, including the committee’s role in the enforcement of intellectual property rights. On this, Switzerland has introduced a new document, according to officials.

The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) will meet on 5-6 June. “The TRIPS Council is looking like it will be fairly quiet next week,” a developed country official told Intellectual Property Watch.

The TRIPS Council typically meets three times a year and many agenda items are viewed as “housekeeping,” continuing from meeting to meeting, though some are potentially explosive such as enforcement or a proposed amendment on biodiversity. Members are free to propose new items as well.

For the meeting, Switzerland has submitted a written request to WTO to add the agenda item, “Enforcement of intellectual property rights (part III of the TRIPS agreement) – communication from Switzerland,” according to a source. The communication was not available at press time. The agenda is tentative and must be approved at the meeting.

In the communication, Switzerland addressed the issue of border measures related to the enforcement of IP, sources said. Proposing enforcement as a separate agenda item could cause discussions as some members argue the issue does not belong in the TRIPS Council at all, which mainly deals with setting up rules for IP. They say, for instance, that questions of failure to adhere to WTO agreements should be left to the WTO dispute settlement mechanism. These countries, mainly developing countries, also fear that this could affect the overall balance or rights and obligations under the TRIPS agreement.

Many developed countries, on the other hand, argue that the TRIPS provisions on ensuring adequate enforcement of IP are a council topic. These countries have been helpful to each other by reintroducing the issue on the agenda, despite strong protests from developing countries when the European Union first proposed it at the October 2006 TRIPS Council meeting (IPW, WTO/TRIPS, 27 October 2007).

At the last meeting, the United States proposed the agenda item, also related to border measures (taken by the US), and Switzerland asked questions in order to see whether these could be used in Switzerland (IPW, WTO/TRIPS, 14 February 2007). A developed country official told Intellectual Property Watch on 1 June that Switzerland at this meeting wants to briefly present the paper, which is consistent with its previous positions.

Since June 2005, there have been at least five enforcement documents introduced in the TRIPS Council, including the communication from Switzerland, one from the United States (IP/C/W/488), from the EU, Japan, Switzerland and US (IP/C/W/485), and two from the EU (IP/C/W/468 and 448), a source said. They are available at WTO’s website.

CBD and GIs Continued

The TRIPS Council has for several years reviewed TRIPS Article 27.3(b) on whether plants and animal inventions other than micro-organisms may be patented (TRIPS says members may exclude these from patentability), and on the protection of plant varieties, a source said.

Article 27.3(b) is as usual a separate agenda item at this meeting. As stated in the Doha Declaration from the 2001 WTO ministerial meeting, this will include a review of the relationship between the United Nations Convention on Biological Diversity (CBD) and TRIPS, and the protection of traditional knowledge and folklore, the source said. The CBD, which is non-binding [Correction: the agreement is binding on countries that sign it, according to the CBD website], goes further than TRIPS in ensuring that the owners of genetic resources are informed, give consent, and benefit from possible developments. Genetic resources may be used for developing medicines, for example.

On these issues, Peru is expected to answer questions about its latest paper (IP/C/W/484), sources said. (IPW, WTO/TRIPS, 1 November 2006).

A group of developing countries proposed in June 2006 (IPW, Biodiversity, 7 June 2006) to amend TRIPS to make prior informed consent and benefit-sharing schemes mandatory for patent applications. An official from this group told Intellectual Property Watch on 1 June that “the discussion is going on,” including in smaller group meetings.

There were previous documents on biodiversity, including from the European Union, Japan and Switzerland not proposing changes to TRIPS, and from Norway (IPW, WTO/TRIPS, 15 June 2006), which proposes to change TRIPS but with fewer binding requirements in the area of sanctions. Separate discussions on biodiversity are being held under the WTO Deputy Director General Rufus Yerxa, a source said.

Geographical indications (GIs), names derived from geographical locations, will also be reviewed (TRIPS Article 24.2). This deals with higher level of protection for wines and spirits, such as champagne. These names are protected today but members are mandated (Article 23.4) to negotiate a register for wines (“multilateral system of notification and registration of geographical indications”), but cannot agree on how this should work. Separately, the question of extending this higher level of protection to other products than wines and spirits, such as Parma ham, continues outside the council in consultations organised by the Director General Pascal Lamy, via WTO officials (Doha Declaration Paragraph 39).

Also on the agenda is a TRIPS provision requiring developed countries to provide incentives for technology transfer to least-developed countries, and a long-standing item that would allow WTO dispute complaints even if countries did not violate a WTO agreement.

This will be the first TRIPS Council that Ambassador Yonov Frederick Agah of Nigeria will lead. He took over after the February meeting.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.