TRIPS Council: IP And Innovation, Compulsory Licensing, Questions For EU On Goods In Transit

The intellectual property committee of the World Trade Organization is meeting next week with several notable items on the agenda, including some reviving earlier negotiations. Among topics for discussion on intellectual property and innovation is a focus on inclusive innovation and micro, small and medium-sized enterprises. Also, India also submitted a series of questions for the European Union about goods in transit, echoing an earlier WTO dispute. And separately, some countries are holding a workshop on geographical indications and traditional knowledge.

The WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) will take place on 19-20 October. [Update: there will also be an informal session held on 16 October, according to the WTO schedule.]

Australia, Canada, the European Union, Japan, Switzerland, Taiwan, and the United States submitted an agenda item on inclusive innovation and micro, small and medium-sized enterprises.

According to the submission, micro, small and medium-sized enterprises (MSMEs) account for more than 90 percent of business globally, and up to 99 percent in low and middle-income countries. However, MSMEs often focus on local markets and face diverse challenges in integrating into global markets, the document says.

The document underlines the importance of intellectual property rights in increasing and enhancing international trade opportunities of MSMEs, for example by helping ensure that “creators benefit from the fruit of their labours, recoup investments, and reward risks to bring to market new technology and ideas in innovative products and services.”

By providing exclusive rights protection, according to the group, IP rights can help MSMEs in the competition with much larger companies, better market and trade their products. Trademarks and geographical indications are described as important IP rights in the document, which “can help increase the level of information about the traded products for consumers and also enhance trade possibilities for MSMEs.”

IP and the Public Interest

Brazil, China, India, and South Africa asked that the Council continue conversations on compulsory licensing started at the last session of the Council in June (IPW, WTO/TRIPS, 15 June 2017).

It was the first time an agenda on IP and the public interest was brought to the Council agenda and was seen as a response to continued agenda items on IP and innovation. The item focused on the use of compulsory licences, which in the health area are steps taken by a government after negotiations with a pharmaceutical company to lower prices of a particular medicine have failed, in order to have the medicine manufactured by a generic company. The item was then sponsored by Brazil, China, Fiji, India, and South Africa.

The TRIPS Council meeting held in autumn every year (there are three TRIPS Council meetings per year) is typically a bit more substantive, and includes a review of the TRIPS amendment on public health, which was aimed at increasing access to affordable medicines under compulsory licence. That is also on the agenda.

India Seeks Answers on IP Enforcement for Goods in Transit

India submitted a series of questions to the European Union on enforcement of IP rights regarding goods in transit.

The submission states that India “appreciates the efforts made by the EU on the issuance of a notice [pdf] on the customs enforcement of IP rights concerning goods brought into the customs authority of the Union without being released for free circulation including goods in transit.”

India is requesting documents from the EU, such as a list of all the applicable custom laws issued by the EU which could be in the form of regulations/directives/guidelines. India also asked if the EU can clarify whether EU Regulation 608/2013 [pdf] is directed only to goods intended and/or suspected of entering in the EU market.

India further asked if Regulation 608/2013 provides any substantive right to an IP right holder or is it merely enforcing the existing IP rights, and if there are any IP rights or infringement of IP rights that are excluded from the scope of the regulation.

On the specific area of medicines, India asks if paragraphs 2.2 and 3.2 of the EU’s notice would apply to medicines as well. Paragraph 2.2 refers to goods coming from third countries without being released for free circulation and bearing an identical or essentially identical trade mark. Paragraph 3.2 deals with identical or essentially identical trademark goods.

Getting the W52 Back Together Again – Workshop on GIs, GRs, TK

Separately, on 17 October, a workshop will be held entitled, “Fairness and Transparency in Intellectual Property Rights for an Inclusive International Trade,” focusing on the “Case of Geographical Indications, Genetic Resources and Traditional Knowledge.”

The workshop sponsors – Brazil, China, the EU, India, Indonesia, Nigeria, Peru, Switzerland, and South Africa – are all members of what is known as the W52 group, a coalition of 109 countries that agreed to support negotiations on the basis of each other’s proposal as a starting point. It combines supporters of a 2008 proposal on modalities in negotiations on geographical indications (the multilateral register for wines and spirits, and supporters of extending the higher level of protection beyond wines and spirits), and the issue of disclosure in patent applications of the origin of genetic resources and traditional knowledge.

In the TRIPS Council, the relationship between the TRIPS agreement and the UN Convention on Biological Diversity, the review of TRIPS Article 27.3(b) which deals with the patentability of plants and animal inventions and the protection of new plant varieties, and the protection of traditional knowledge and folklore, have been at a standstill for years.

The issue of the multilateral register for wines and spirits, and geographical indications extension were for some years taken up by special session of the TRIPS Council. A special session is scheduled on 18 October.

Non-Violation Complaints

Non-violation complaints refer to cases brought against a WTO member by another WTO member if it feels that it has been deprived of an expected benefit even if no WTO agreement has been violated.

Such complaints are currently not applicable to intellectual property. IP-related non-violation complaints have benefitted from a moratorium shielding them from the mechanism. The moratorium has been extended by the WTO Ministerial Conference several times in the past.

Most WTO members would like the moratorium to be extended indefinitely, while the US and Switzerland would like to see the moratorium lifted.

At the last ministerial, TRIPS members were asked to agree on a solution for the next Ministerial meeting, which is due to take place from 10-13 December in Buenos Aires.

 

Image Credits: Catherine Saez