Bridges Trade BioRes • Volume 7 • Number 3 • 16th February 2007

DISCLOSURE OF ORIGIN AGAIN ON THE TRIPS COUNCIL AGENDA

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DISCLOSURE OF ORIGIN AGAIN ON THE TRIPS COUNCIL AGENDA

At a recent meeting of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Council, countries largely reiterated known positions on the relationship between the TRIPS Agreement and the Convention on Biological Diversity. Meanwhile, informal consultations on how to move the issue forward are ongoing, following the formal relaunch of the Doha Round at the WTO (see Bridges Trade BioRes, 2 February 2007, http://www.ictsd.org/biores/07-02-02/story1.htm).

The need for implementing effective international measures to prevent the ‘theft’ of genetic resources and associated traditional knowledge (TK) — often referred to as ‘biopiracy’ — has been a matter of concern for many developing countries. To address this issue, the countries have proposed an amendment to the TRIPS Agreement. This would entail incorporating a requirement to disclose the origin of genetic resources and associated TK in patent applications along with evidence of prior informed consent and benefit sharing (see Bridges Trade BioRes, 16 June 2006, http://www.ictsd.org/biores/06-06-16/story3.htm). They argue that such a requirement would be necessary to ensure that the TRIPS Agreement did not undermine the objectives of the Convention on Biological Diversity (CBD).

At the 13 February meeting of the TRIPS Council in Geneva, the group of developing countries — Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand, Tanzania, Ecuador and South Africa — that has proposed a provisional article on disclosure (Article 29bis - Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge) repeated their call for the TRIPS Agreement to be amended. They said they now were ready to proceed with text-based negotiations.

A number of African countries took the floor to support the disclosure of origin proposal, and said they were considering becoming co-sponsors. Brazil welcomed this move, noting that it would significantly enhance the support for a potential amendment of the TRIPS Agreement.

At the TRIPS Council, other countries — including Australia, New Zealand and Canada — said it was too early to discuss issues such as bio piracy and disclosure of origin requirements. Some, such as the EU, were of the opinion that the TRIPS Council was not the appropriate forum for the discussion, preferring the World Intellectual Property Organisation (WIPO) and its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge (IGC). The EU has previously issued a proposal within the WIPO IGC based on the EC Directive on the legal protection of biotechnological inventions. The proposal provided for a mandatory requirement to disclose the country of origin of the genetic resources and associated knowledge in all patent applications, for instance by amending the Patent Cooperation Treaty (PCT), Patent Law Treaty (PLT) or European Patent Convention (EPC). It also included provisions for prior informed consent and equitable benefit sharing.

Norway has also issued its own communication last year advocating the need for a disclosure requirement (see Bridges Trade BioRes, 16 June 2006, http://www.ictsd.org/biores/06-06-16/story3.htm). The US takes the opposite view and argues that although the TRIPS Agreement does not include provisions to protect genetic resources form misappropriation and theft, this absence does not indicate a conflict between the CBD and the TRIPS Agreement. Korea and Japan also oppose an amendment to the TRIPS Agreement.

Following the TRIPS Council some negotiators speculated that — given the deep divisions between the developing countries and the US — the EU might possibly become the bridge builder with regard to a decision on whether or not a disclosure requirement should be introduced into the TRIPS Agreement.

Discussions on a disclosure of origin requirement and access and benefit-sharing are also taking place within the CBD framework (see Bridges Trade BioRes, 2 February 2007, http://www.ictsd.org/biores/07-02-02/story4.htm). The focus on disclosure of origin differs between the two forums, with the CBD process set to establish an international ABS regime. Following the TRIPS Council, one delegate speculated that if countries could agree on an ABS regime under the CBD, this would add credibility to the argument for a disclosure of origin requirement within the TRIPS Agreement.

Over the following weeks, WTO Deputy Director-General Rufus Yerxa will meet informally with ambassadors and intellectual property negotiators from individual delegations to determine how best to proceed.

ICTSD Reporting; "TRIPS Meeting: Boost to IP Issues As Part of Resumed Trade Talks, US Submits Enforcement Proposal", IP WATCH 14 February 2007.