Developing Countries Weigh Restarting Talks For TRIPS Amendment On Biological Resources 29/03/2017 by Catherine Saez, 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)NEW DELHI, India — Biopiracy is ongoing in many developing countries, and as long as there are no international obligations for patent applicants to disclose the origin of the genetic resources or traditional knowledge they use, the issue will endure, according to speakers at a recent conference in New Delhi. The broken conversation at the World Trade Organization needs to be rekindled so that an international regime of protection is set up, they said. Participants suggested that WTO Director General Roberto Azevêdo should pick up where his predecessor Pascal Lamy left off after 2011, and restart informal consultations. They also said the December 2017 WTO Ministerial Conference should consider the issue and that a ministerial declaration should be drafted. Indian Commerce Secretary Rita Teaotia The “International Conference on the TRIPS/CBD Linkage: Issues and Way Forward” organised by the New Delhi-based Centre for WTO Studies took place from 15-17 March. TRIPS is the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and the CBD is the UN Convention on Biological Diversity. Participants were mostly from developing country groups and favourable to resolution of the longstanding stalemate at the WTO on the matter. The issue of misappropriation of genetic resources and associated traditional knowledge is addressed internationally by the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD. However, the Protocol does not deal with mandatory disclosure of origin. Misappropriation of genetic resources, traditional knowledge, and traditional cultural expressions is also the object of a World Intellectual Property Organization committee, and has been in discussion for the last 16 years. In the WTO Council for TRIPS the issue also is longstanding. but discussions have been on hold since 2011. Following the WTO Doha Round, the issue has been interlinked in the TRIPS Council with an international system of notification and registration of geographical indications (GIs) for wines and spirits, and the extension of the protection granted to wines and spirits to other geographical indications. In 2008, the three issues brought together proponents of GIs, and proponents of a mandatory disclosure in patent applications of the origin of genetic resources and traditional knowledge used in inventions. Those countries issued a proposal known as W/52 in reference to the WTO document number, which was supported by 109 WTO members at the time of its submission, the large majority of WTO membership. Some countries that saw no advantage in promoting the protection of GIs nor adding a disclosure requirement in TRIPS did refused to negotiate on that proposal, such as the United States, Australia, Canada and Japan. The discussions were so difficult that Lamy was requested by some member states to conduct informal consultations [pdf] to advance the issue, and held 11 rounds of consultations between 2009 and 2011, without success. In 2011, the consensus broke down as some developing countries, including India and Brazil, found that not enough support was given to the issue of disclosure of origin. A separate proposal was made, known as W/59, by Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the African, Caribbean and Pacific Group of States Group, and the African Group. This proposal called for an amendment to the TRIPS through an additional article (Article 29bis) on disclosure. W/59 also includes additional elements on disclosure, such as enforcement measures, including revocation of the patent. Ideas for Way Forward According to participants at the conference, while discussions are stalled at the WTO, and not making much progress at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), misappropriation is still rampant, and solutions need to be found beyond national laws and databases. One of the measures that was suggested by several participants is the need to ask Azevêdo to resume consultations on the matter based on Lamy’s report of 2011. Another suggestion was the possibility of revisiting the W/52 and W/59 to reach more consensual language for proponents of those proposals and re-submitting something to the Council for TRIPS. One participant, following the now routine “IP and innovation” additional agenda item submitted mostly by developed countries in the Council for TRIPS, suggested that a regular agenda item on “IP and misappropriation” be added, and that a corresponding side event be organised. A number of participants also agreed on the idea to aim at the next WTO Ministerial Conference with a draft ministerial declaration, and push to have intellectual property issues among the topics discussed. Some participants said an information session on the W/52 and W/59 would be useful for the next TRIPS Council on 13-14 June, as the issue has not been discussed for years and new delegates might not be up to speed on the matter. Then an open workshop for all WTO members could also be envisioned for the TRIPS Council’s October meeting, some said. Questions also arose about the bargaining position of the proponents of the discussion on TRIPS/CBD in the TRIPS Council, and what could constitute something that would appeal to countries resisting the conversation, such as the United States. No concrete suggestion was made. According to some participants, one of the solutions to misappropriation could lie in plurilateral systems, as they allow for flexibility in the choice of participants, and “getting around the decision-making ordeal of the WTO,” as one of the participants put it. Plurilateralism also answers to changing needs, the participant said. Rising Value, Database Useful but More Help Needed In her inaugural address at the conference, Indian Commerce Secretary Rita Teaotia noted the economic value contained in herbal medicines, and the raising interest of consumers for herbal remedies. The Indian medicinal plants and their products account for an estimated US$ 1.2 billion in exports, she said. According to Teaotia, the primary reason for the growing market size of herbal medicines has been the demand being placed on health systems on account of chronic illnesses, escalating health care costs and an increasing favourable perception of the effectiveness of traditional medicine. Many existing modern medicines are originally based on herbal products, she said. To fight misappropriation of traditional knowledge, India established the Traditional Knowledge Digital Library. Over 1,000 patent applications were identified based on the knowledge contained in the digital library, such as ayurveda, unani, siddha and yoga, she said. However, she added, traditional knowledge systems are predominantly non-codified and community held. “The absence of a regime seeking mandatory disclosure of source of origin of the biological resource and evidence of prior informed consent and benefit sharing from patent applicants makes it difficult to establish whether a patent is sought on existing knowledge,” she said in her statement, and called for an international legal regime that makes patent offices check points to contain misappropriation. In India, she said, the Patent Act requires mandatory disclosure of source and origin of resources, and a no-objection certificate from the National Biodiversity Authority. The Biological Diversity Act is mandated to carry out the prior informed consent and access and benefit sharing through the National Biodiversity Authority and the State Biodiversity Authorities. “However, the issue can never be addressed by national regimes and the absence of an international regime is a major gap in addressing the issue of biopiracy,” she said. Teaotia called for the need to revive the discussions in the TRIPS Council. Prof. Chandni Raina of the Centre for WTO Studies said in her presentation that over 1,500 herbal-based products are sold in the United States and in Europe as dietary supplements, and the demand for medicinal plants is expected to increase from US$120 billion to US$7 trillion by 2050. Attempts at patenting traditional knowledge are well-known and numerous, she said, citing cases such as turmeric, neem, basmati rice, kava, quinoa, and enola bean. Presenting evidence from the TK Digital Library, she said 89 European Patent Office (EPO) patents were withdrawn, 36 EPO patent applications were modified or amended, 13 US applications were rejected, and 3 United Kingdom applications were terminated. In India, she said, one patent was revoked and 17 patent applications were refused. 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) Related Catherine Saez may be reached at firstname.lastname@example.org."Developing Countries Weigh Restarting Talks For TRIPS Amendment On Biological Resources" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.