Bridges Trade BioRes • Volume 2 • Number 14 • 26th September 2002

Summit Outcomes Cited As Impetus For Progress In TRIPs Discussions

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Summit Outcomes Cited As Impetus For Progress In TRIPs Discussions

The WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) at its 17-19 September meeting continued discussions on issues related to TRIPs Article 27.3(b) (patentability of life forms), the relationship between the TRIPs Agreement and the Convention on Biological Diversity (CBD), and traditional knowledge. Several Members cited the outcomes of the World Summit on Sustainable Development (WSSD) as a confirmation of the high priority that should be given to these issues by the Council.

The relevance of the WSSD for the work of the TRIPs Council, in particular the decision to negotiate an international regime on benefit-sharing (see BRIDGES Trade BioRes Special WSSD Update No.5) was raised, inter alia, by Brazil and Colombia on behalf of the Andean countries. While not necessarily calling for a benefit-sharing regime to be established under the TRIPs Agreement, Brazil pointed out that the decision highlighted the need for including elements of disclosure of origin, prior informed consent and benefit-sharing in the Agreement to ensure that the CBD was not jeopardised by the absence of measures in the TRIPs Agreement to combat biopiracy.

WTO Members furthermore addressed various points raised in a "concept paper" submitted by the EC. In the paper, the EC signalled its willingness to discuss the inclusion of disclosure requirements in patent applications, as repeatedly called for by a number of developing countries (see BRIDGES Trade BioRes, 11 July 2002). To this end, the EC proposed the establishment of a "self-standing" requirement to include information on the geographic origin of the genetic resources and traditional knowledge. Such a requirement, however, should not constitute an additional formal or substantial patentability criterion. Thus, failure to disclose should lie outside the patent law, but should, for instance, be regulated by civil or administrative law.

While welcoming the EC proposal as a good step forward, Brazil expressed disappointment that the submission only addressed one leg of the tripod (disclosure), but had failed to deal with the other two (benefit-sharing and prior informed consent). The three elements, however, needed to be looked at together in order to ensure mutual supportiveness of the CBD and the TRIPs Agreement, and the prevention of biopiracy, Brazil added.

In addition to the developments in the TRIPs Council, the need for equitable access and benefit-sharing (ABS) measures in general and for disclosure requirements in particular appears to be attracting increasing attention and support in various fora. These include the CBD — in particular the Bonn Guidelines on ABS which include disclosure requirements as a possible compliance measure (see BRIDGES Trade BioRes, 18 April 2002) –, the WIPO [World Intellectual Property Organization] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (see BRIDGES Trade BioRes, 27 June 2002), the WSSD decision, which calls for the negotiations of a benefit-sharing regime to be ‘bear in mind’ the Bonn Guidelines, and most recently the report of the UK Commission on Intellectual Property Rights (see related story, this issue). As one source noted, the TRIPs Council needed to respond to this growing momentum so as not to prejudice the outcomes of these discussions. Some WTO Members, however, have in the past been reluctant to address these issues in the TRIPs Council while discussions were still going on in related fora.

The next regular session of the TRIPs Council will be held on 25-27 November. In addition, an informal meeting has been scheduled for 10 November to discuss the possible extension of a higher level of protection for geographical indications to products other than wines and spirits.

ICTSD reporting.