Bridges Trade BioRes • Volume 4 • Number 22 • 3rd December 2004

TRIPS COUNCIL PICKS UP SPEED WHILE FOCUSING ON PRIOR INFORMED CONSENT


TRIPS COUNCIL PICKS UP SPEED WHILE FOCUSING ON PRIOR INFORMED CONSENT

At the Council for Trade-related Aspects of Intellectual Property Rights (TRIPS) on 1 - 2 December, an attempt was made to move substantive debate forward on the relationship between the TRIPS Agreement, biodiversity issues and traditional knowledge with a new proposal (IP/C/W/438) submitted by Bolivia, Brazil, Cuba, Ecuador, India, Pakistan, Peru, Thailand and Venezuela.

While other countries remained in their traditional positions, debate in this session regarding the difficult subject area of TRIPS and biodiversity started to move forward on substantive rather than technical concerns.

Advancing the substantive debate

The new proposal focused on Prior Informed Consent (PIC), the second of the three elements identified in the ‘checklist’ presented in March 2004 by a number of developing countries (IP/C/W/420) as the basis for future negotiation in the TRIPS Council on biodiversity related concerns. It paid particular attention to Article 15 of the Convention on Biological Diversity (CBD), according to which the Contracting Party is obliged to disclose prior informed consent in patents which involve the use of biological resources, unless otherwise determined by the country that provides those resources.

This recent move follows a proposal (IP/C/W/429) made during the last TRIPS Council meeting in September, which focused on the first of the three checklist elements, namely disclosure of origin (see BRIDGES Trade BioRes, 23 September 2004). The third item is disclosure of benefit sharing under the relevant national-level regime.

Most of the other Members remained unchanged in their positions on this issue. The US maintains its belief that there is no inherent conflict between TRIPS and the CBD, and that mandatory disclosure mechanisms are inappropriate as they are likely to lead to uncertainties in the international patent system. They thus favor a contract-based approach (IP/C/W/434).

Switzerland in a new proposal (IP/C/W/433) reaffirmed its support for a voluntary patent disclosure system on the source of genetic resources and traditional knowledge. However, it believes that WIPO’s Patent Cooperation Treaty (PCT) would be a more appropriate forum for this than the WTO, and informed the TRIPS Council that it was pursuing the matter in WIPO.

The EU, on the other hand, has suggested that a mandatory system of disclosure would be suitable in principle. However, it has not yet decided on how to best implement this in practice. Similarly, New Zealand and Australia remain more tentative in their approaches towards the issue.

Challenging existing positions

While also remaining undecided on how to best resolve potential conflicts between TRIPS and biodiversity related concerns, Canada intervened to challenge the proponents of the three dominant positions in the Council to examine how ‘bad patents’ such as neem, turmeric or basmati rice would have been resolved under their respective mandatory, voluntary and contract-based approaches. This challenge was supported by Australia and New Zealand, confirming the demand for assessments of the potential impact of each of the three methodologies on actual cases.

While no real advances were made in this session, the debate was characterised by a much more constructive atmosphere than in previous meetings, with countries more willing to discuss substantive issues.

Background

Under the Doha mandate (Paragraph 19), the TRIPS Council, in its review of Article 27.3 (b) and Article 71.1 of TRIPS, is instructed to consider the relationship between the Agreement and the Convention on Biological Diversity (CBD), the protection of traditional knowledge and folklore.

The next TRIPS Council is scheduled for 8-10 March 2005.

ICTSD reporting.