New Process, Mandatory Disclosure Stir Reactions In WIPO Committee On Genetic Resources

A proposed revision of articles that could become a World Intellectual Property Organization instrument protecting against the misappropriation of genetic resources met with strong resistance from some developing countries, asking that the committee revert to the previous version of the text. Their concern is what they see as new issues and concepts introduced this week, mainly by the United States. The committee chair decided to start a new process.

The 35th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), is meeting from 19-23 March. On 21 March, the facilitator and the friend of the chair, both named by the IGC Chair Ian Goss, produced the first suggested revision of  a set of articles [pdf] (Rev1).

The text addresses Article 1 (objective), Article 2 (subject matter of instrument), Article 3 (disclosure requirement), Article 4 (exceptions and limitations), Article 5 (sanctions and remedies), Article 6 (due diligence), and Article 7 (prevention of the erroneous grant of patents, databases and voluntary codes of conduct).

After some countries declined to engage on the text, Goss, who is general manager, Business Development & Strategy Group at IP Australia, convened informal consultations with a “Like-Minded Country” group and the United States. This morning, in plenary session, Goss laid out a new process.

This afternoon, three contact groups will be established, each in charge of a core issue, Goss said. The first group will work on the preamble, the second on key terms relating to the disclosure requirement, such as “utilisation,” “providing countries,” and “directly based on.” The third contact group is tasked with working on the issue of sanctions.

Those contact groups are informal, Goss explained, and are expected to report back later this afternoon on progress made. The facilitator and the friend of the chair are expected to produce a second revision of the Consolidated Document [pdf] Relating to Intellectual Property and Genetic Resources, which came from the last session of the IGC on genetic resources (GR), in 2016.

Rev1: Like-Minded Countries Refuse to Engage

Paul Kuruk, executive director of the Institute for African Development in Ghana, is the facilitator, and Margo Bagley, law professor at Emory University (US), and a member of the Mozambique delegation, friend of the chair worked from the consolidated document. They took into account comments made by member states on the text, and were tasked to reflect those comments and produce a text providing clear options.

Rev1 of the text, which was not an official document, was received with resistance yesterday from the group of Like-Minded Countries (LMCs), which includes the African Group. They said that they could not engage on the text and prefer reverting to the original version of the consolidated document to continue discussions.

The first revision of the text was organised in two parts. The first one contained a set of articles with the objective of having a mandatory disclosure requirement, the second set with the view of having a non-mandatory disclosure. In doing so, the facilitator and the friend of the chair tried to clearly separate the two directions of the discussion. According to a source, it was also their intention to keep the integrity of each option.

The issue of mandatory disclosure requirement is one of the prickliest issue discussed at the IGC and has consequences on most articles of the potential treaty, for example on sanctions and remedies, and whether such sanctions should include the revocation of patents.

During the first days of the IGC, the United States made a number of textual proposals to the consolidated document – including on the issue of disclosure – which were incorporated, mainly in the second set (alternatives to articles 1-7) of articles in Rev1.

Indonesia, coordinating the LMC group, remarked on the importance of maintaining the integrity of the text, and said the objective of narrowing the gaps had not been met in Rev1.

Egypt and Iran declared they were surprised by Rev1. Egypt found that the text only reflects limited positions of some states, and Iran said Rev1 was crystallising the gaps, rather than bridging them. Nigeria said new text and concepts have been added to the text, which brings the text away from closing the gap. South Africa also said many new concepts appeared in the document, such as business secrets, and the inclusion of those concepts changed the fundamental impact of the text.

South Africa questioned the approach of having a first revision in the middle of the IGC, to be worked on so that a second revision of the text be produced and “given status by default” on the last day of the meeting. The second revision of the text is never clearly debated, the South African delegate said, adding he found this approach a procedural issue in need of consideration.

India and Indonesia also said the IGC should revert to the original consolidated text. Brazil supported Nigeria and South Africa concerning the procedural issue.

Chair Explains Intent

The chair cannot reduce gaps, nor the facilitator, Goss said yesterday, as only member states have the ability to reduce gaps in points of view. The chair “cannot force you to do that” and there are in the IGC major divergences in view, he said.

A number of member states can go along with a mandatory disclosure requirement in intellectual property applications, but some do not believe this is an appropriate mechanism. There is a need to give clarity to those different perspectives, he added.

He also noted that divergences of views also existed among the proponents of a mandatory disclosure requirement, for example on sanctions and remedies.

This morning he also asked that countries refrain from interfering in positions they do not support.

 

Image Credits: WIPO