TRIPS • Volume 8 • Number 12 • 27th June 2008

TRIPS Council Considers Disclosure Issues; Divisions Remain

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WTO Members continued to disagree on biodiversity-related issues at the latest Council on Trade Related Aspects of Intellectual Property Rights (TRIPS), held on 17 June.

Members’ disagreements centred on a proposed amendment to the TRIPS Agreement, which would incorporate a ‘disclosure of origin’ requirement for biological resources (IP/C/W/474, available at http://docsonli.wto.org), as well as on whether intellectual property (IP) issues should be included in upcoming ‘horizontal’ negotiations on modalities in agricultural and non-agricultural market access within the Doha Round.

Disclosure on the agenda - again

As has been the practice in previous Council meetings, the agenda items on patenting, biodiversity and the protection of traditional knowledge and folklore had been scheduled to be discussed together. However, the debate focused on three subjects, only one of which was included in this framework. Continuing an ongoing informal dialogue (see Bridges Trade BioRes, 13 June 2008, http://www.ictsd.org/biores/08-06-13/inbrief.htm#1), delegates discussed the development of a register for geographical indications (GI), the extension of high-level protection to GIs other than wines and spirits, and the possibility of amending the TRIPS Agreement to include a disclosure of origin requirement in patent applications.

Disclosure turned out to be the most contentious issue at the meeting. Also considered in informal consultations chaired by WTO Deputy Director-General Rufus Yerxa, disagreement on the topic centred on the possibility of amending the TRIPS Agreement to bring it in line with commitments under the UN Convention on Biological Diversity (CBD). Specifically, the proposed amendment would require that patent applications disclose the origin of genetic material or traditional knowledge used in inventions. The current debate is over whether this amendment is the most effective way to stop the misappropriation of genetic resources and associated traditional knowledge.

Consequently, the issue of ‘parallelism’ was raised. Parallelism refers to the question of whether all three of the IP issues in question - the GI register, its extension and disclosure - should be included in forthcoming horizontal negotiations on market opening in the agricultural and industrial sectors. Those in favour of parallelism want the negotiations to include all three IP issues, while those against it argue that more technical discussion and empirical evidence is required before moving to text-based negotiations. Those opposed further maintain that parallelism would substantially delay progress in the Doha negotiations.

Members’ positions remain unchanged

Proponents of disclosure and parallelism, which include Brazil, China, India, Indonesia, the group of least developed countries (LDCs), Peru and Thailand, re-emphasised that the support extended to the disclosure proposal amounts to over two-thirds of the WTO Membership. They urged the Council to push forward and proceed with text-based negotiations.

The Philippines and South Africa spoke against parallelism but in favour of disclosure; Taiwan, while undecided on disclosure, opposed parallelism.

Sources report that critics of both parallelism and disclosure, which include Argentina, Australia, Canada, Korea, Japan, Singapore, and the US, argued that disclosure is not the most effective way of dealing with misappropriation. Those delegations further maintained that including the three controversial IP issues with the other subjects would jeopardise the negotiations on agriculture and industrial products.

Korea, Singapore and the US reiterated that they did not believe that an amendment of the TRIPS Agreement constituted the most effective way to address Members’ concerns related to bio-piracy, referring to alternatives such as a database system proposed by Japan (IP/C/W/504 and IP/C/W/472). They maintained that further facts-oriented discussions in the Council were necessary on the issue.

Bolivia, on behalf of its indigenous peoples, declared that it was strongly opposed to the concept that natural resources could pertain to the domain of private property rights, and that patents did not constitute the appropriate means of protection.

With respect to enforcement, the EU repeated its view that sanctions for a violation of the disclosure of origin requirement should be sought outside of patent law, as a revocation of patents would endanger the viability of the patent system.

Members also discussed wither the secretariat of the Convention on Biological Diversity (CBD) should be granted observer status. Brazil, China, Ecuador and India expressed strong support for such as move. The Chair, Ambassador Gail Marie Mathurin (Jamaica) announced that immediate consultations on this matter would be held with the CBD Secretariat.

The meeting concluded with the announcement that a new chairperson will be sought, as the current chair will be taking on new duties in Jamaica.

ICTSD reporting.