Least Developed Countries Ask For Better Implementation Of TRIPS Tech Transfer Requirements 23/02/2018 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)The World Trade Organization council on intellectual property rights will hold the first of its three annual meetings next week. The now-usual item on IP and innovation is joined by a discussion topic on IP and the public interest. Separately, the WTO least developed countries group has put forward a request that developed countries fully implement their technology transfer requirements under the WTO rules. The council meeting will be preceded by a high-level trilateral meeting of the WTO, World Health Organization and World Intellectual Property Organization. World Trade Organization The WTO will also participate next week in a joint symposium on innovation and the realisation of the United Nations Sustainable Development Goals. The trilateral event is held with the World Health Organization and the World Intellectual Property Organization. The Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) will take place from 27-28 February. It is preceded by the trilateral joint symposium on 26 February. LDC Request for Tech Transfer Implementation The group of least-developed countries (LDCs) submitted a communication [pdf] put forward by Cambodia on behalf of the group, about the TRIPS technology transfer requirements included in TRIPS Agreement Article 66.2. Article 66.2 states that “Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.” The LDC Group in their document said they “have been concerned with the lack of effective implementation of paragraph 2 of Article 66 of the TRIPS Agreement.” There is a lack of clarity in notifications on the nature of incentives and “whether such incentives result in technology transfer to LDCs, that foster the creation of a sound and viable technological base for least-developed countries,” they said. “Many notifications continue to demonstrate that incentive programmes identify recipients that are not LDCs and where LDCs are identified, incentives do not result in transfer of technology,” the document said. It added, “Some developed Members claim that it is difficult for governments to ensure technology transfer because technology is the subject of private contracts and rights.” The group requests that the TRIPS Council issue a decision to enable the effective implementation of TRIPS Article 66.2. In particular, the group asks that developed countries only specify incentives provided to LDCs for technology transfer, and that the TRIPS Council deliberate on the meaning of “incentives to enterprises and institutions.” LDCs also request that TRIPS Council deliberation include discussion of whether conditions for participating in contracts tendered by their governments, to be implemented in LDCs, involve incentives for technology transfer, and provision of royalties as an incentive when technologies are transferred by enterprises in developed countries to LDCs. IP and Innovation Australia, Canada, the European Union, Japan, Singapore, Switzerland, Taiwan (and separate customs territory of Taiwan: Penghu, Kinmen, and Matsu), and the United States added an item on inclusive innovation and micro and small and medium-size enterprises (MSME) growth. The document [pdf] tabled by the co-sponsors aims at summarising discussions on inclusive innovation and MSMEs which took place at the TRIPS Council in 2017. It also highlights some examples raised, and underlines the value of intellectual property for MSMEs. According to the document, businesses using IP rights perform better on average, in particular MSMEs, making IP important for “smart and sustainable growth.” The integration of MSMEs into global trade is a key challenge, said the document, and there “is still ample room for MSMEs to better utilize IP both domestically and internationally to support this goal.” “IP rights support inclusive collaboration and they play a role in collaboration related programs or platforms,” the document states. It gives an example of such inclusive collaborations, such as: the Global Innovation Strategy (Australia); the European Cluster Collaboration Platform (EU); the Public-Private Partnership Innovation Program (Japan); Emerging Industries Accelerator Programme (Taiwan); and the Global Innovation Forum and US Cluster Mapping Project (US). According to the co-sponsors, “MSMEs can achieve sustainable growth using IP,” giving them the confidence and the means to invest in research and development-based products and services. IP and the Public Interest During the few last TRIPS Council meetings, some developing countries have tabled a discussion topic on IP and the public interest, seemingly to balance the item on IP and innovation, and to be able to consider how the IP system can be used by developing countries beyond enforcement. For this meeting, Bolivia, Brazil, Chile and South Africa proposed an item on IP and the public interest, and in particular the use of the regulatory review exception, also known as the “Bolar exception.” The four sponsors of the document [pdf] are calling for a sharing of experiences. “According to the document, countries put in place regulatory requirements in certain industries in order to grant authorization for the commercialization of products.” These measures are meant to protect consumers and are particularly stringent in the pharmaceutical sector, it said. “In some countries, legislation allows a third party to undertake, without authorization from the patent right holder, measures in respect of a patented product necessary for obtaining regulatory authorization for commercializing that product.” The regulatory review is known as the Bolar exemption, and is found in a number of countries’ laws, it said. The Bolar exemption enables generic medicine producers to get ready to enter the market as soon as patents expire, the document explains. Without this exception, generic manufacturers “would be blocked from undertaking the trials required for regulatory approval, taking months, perhaps years, to obtain such approval,” which would equate to extending the protection of the patent owner. Faced with the rising incidence of diseases and the need to provide access to life-saving medicines at a “reasonable cost,” countries need the Bolar exception to stimulate competition and ensuring the protection of public health, the co-sponsors said in the document. The document includes some questions to be discussed during the TRIPS Council next week, including. These include: Which measures undertaken by legitimate third parties are exempted from the enforcement of patent protection under the exception? Is the exception applicable to a specific industry or is it neutral in that regard? What were the challenges faced by WTO Members in implementing such exception? Non-Violation Complaints A decision [pdf] taken at the WTO Ministerial meeting in Buenos Aires in December requests that the TRIPS Council continue discussion the scope and modalities for non-violation complaints, and make recommendations at the WTO Ministerial meeting in 2019. Until that date, no complaints can be brought under the TRIPS (IPW, WTO/TRIPS, 8 January 2018). Trilateral Symposium on Innovation and Public Health On 26 February, the WTO, the WHO, and WIPO are jointly organising a symposium to examine how innovative technologies can promote health-related UN Sustainable Development Goals. According to the WHO, this seventh technical symposium organised by the three international organisations “will discuss challenges and opportunities for the international community to ensure that innovative technologies are developed and reach patients in order to realize the right to health and the health-related SDGs.” The programme of the symposium includes three panels, one focusing on global health data, disease burden, and the challenges ahead. Another panel is expected to discuss technology as a driver of medical progress and access, and the final panel is set to examine how policy choices impact on access to innovative technologies. Image Credits: Catherine Saez 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 csaez@ip-watch.ch."Least Developed Countries Ask For Better Implementation Of TRIPS Tech Transfer Requirements" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.