TRIPS Council: Half Of WTO Membership Backs Biodiversity Amendment

By Kaitlin Mara and William New
The World Trade Organization committee on intellectual property rights concluded its triennial gathering one day early in a meeting several participants characterised as “routine.” The meeting was marked by further support for an amendment to WTO rules for biodiversity, a lack of enforcement issues, the welcome of Vietnam, and the buzz of the nearby high-level “Green Room” negotiations.

Upstairs in the WTO headquarters at the same time as the TRIPS Council two key IP issues were raised in the Green Room by proponents: an amendment requiring the disclosure of origin of genetic resources and traditional knowledge, and a proposal to extend elevated geographical indications (GIs) protection to other products besides wine and spirits, according to sources familiar with the process. The Green Room process brings a small number of key ambassadors into a room with the WTO director general, and is being used to try to advance the Doha Round of trade liberalising negotiations. GIs are product names derived from certain regions or containing certain characteristics.

The Green Room process is mainly focussed on agriculture and non-agricultural market access, but governments also raised several other topics, including GIs (by Europe) and the biodiversity amendment (by Brazil, India), the sources said, adding that there was no resolution on issues. Proponents of each have signalled publicly that they will not oppose each other’s proposal, but the sticking point has been a few key countries with little to gain from either, such as Australia and the United States, who have opposed inclusion of either.

In the TRIPS Council, it was announced that the Dominican Republic and the Africa, Caribbean and Pacific (ACP) countries are now formal cosponsors of a proposed amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that would require disclosure of origin on genetic resources and traditional knowledge, according to participants. This brings the total number of amendment supporters to nearly 80 members out of the total WTO membership of 151, supporters said. The WTO TRIPS Council met on 13 March.

Uganda also spoke on behalf of the least developed countries (LDCs) on TRIPS Articles 66.2 and 67, which require, respectively, developed countries to create incentives for technology transfer to LDCs, and provide “technical and financial cooperation” to developing and least-developed countries to aid their implementation of TRIPS obligations, according to a Ugandan official.

Uganda and Sierra Leone submitted papers at the last TRIPS Council meeting, in October (IPW, WTO/TRIPS, 23 October 2007), detailing their needs and requirements for technical and financial cooperation under Article 67, but there had not been enough time to thoroughly discuss them at that time, according to one participant.

Cyprian Batala, the assistant commissioner for trade in Kampala, said that he thought the proposal was well-received, and that he hoped there would be consensus between now and June TRIPS Council meeting. An American diplomat said the United States was “enthusiastic and happy” to receive the information and to contribute.

The European Union restated its position on disclosure of origin of genetic resources in patent applications, maintaining past differences on scope from the group of disclosure proponents, according to a source close to the European position.

The disclosure group, which is seeking to move to text-based negotiations, wants the disclosure amendment to the TRIPS agreement to require information about prior informed consent and equitable benefit sharing, while the EU is only talking about disclosure of origin on genetic resources, according to the European source. The EU also is determined that sanctions for non-compliance remain outside the patent law regime, whereas the disclosure group wants to see revocation of a patent as a possible penalty for failure to comply with disclosure of origin rules, the source added.

Discussions on the relationship of the TRIPS agreement to the United Nations Convention on Biological Diversity (CBD), the protection of traditional knowledge and folklore, and a review of TRIPS Article 27.3b, which covers the possible patenting of innovations on life forms, such as plant varieties, are standing agenda items of the council, as mandated by the 2001 Doha Declaration. This includes taking into account development issues as well as the original aims of the TRIPS agreement.

Enforcement “Will Come Back”

Noticeably absent from the meeting agenda was enforcement, a contentious issue raised regularly by developed countries at recent council meetings. Not a standing agenda item, enforcement must be requested by a member state in order to be discussed at the council. When it has been raised, some developing countries typically counter with the argument that enforcement issues belong at the WTO dispute settlement mechanism not the TRIPS Council.

Asked about the absence, a developed country official said enforcement proponents “skipped a meeting,” but that it should be on the next TRIPS Council agenda. “It’ll come back,” he said.

New Faces at the Table

This was the last meeting that will be chaired by Yanov Frederick Agah of Nigeria. Beginning with the next TRIPS Council Gail Marie Mathurin of Jamaica will take over the chair.

Vietnam, newly acceded to the WTO, had its intellectual property legislation formally reviewed. Written questions have been sent to Vietnam, which is in the process of answering them, an official said. A delegation of eight came to present for the country, and the government made the statement that over the last twelve years Vietnam had “unceasingly supplemented and improved” its intellectual property system and that it was determined that it be “effective… for the protection of intellectual property in order to facilitate the development of [the] Vietnamese economy.”

Kaitlin Mara may be reached at kmara@ip-watch.ch. William New may be reached at wnew@ip-watch.ch.