A proposal to give the WTO a monitoring role in the enforcement of intellectual property rights has been strongly rejected by a number of developing countries, while developed countries continue to oppose new provisions to prevent biopiracy.
In a paper submitted jointly to the October meeting of the WTO Council for Trade-related Aspects of Intellectual Property (TRIPS), the EU, Japan, Switzerland and the US highlighted the rapid expansion of global counterfeiting and piracy. They invited Members to engage in a discussion on how to implement enforcement provisions, and proposed that they request the Secretariat to compile information received from governments on the subject. The initiative followed a controversial proposal submitted by the EU in June, which suggested that the Council examine Members’ compliance with the enforcement provisions of the TRIPS Agreement and make “recommendations on ways to improve the situation.”
Noting that the TRIPS Agreement explicitly gives Members the right to determine the appropriate method of implementing its provisions, Argentina, Brazil, Chile, China, India and Venezuela argued that discussing enforcement in the Council would restrain countries’ flexibility in drafting and enforcing domestic IPR legislation. There were other means of dealing with weak implementation, they contended, including the WTO’s trade policy reviews and the dispute settlement system. They also rejected a suggestion to focus the Council’s work and technical assistance on enforcement provisions.
Preventing the Misappropriation of Genetic Resources
Delegations again picked up discussions on the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD). Under the CBD, access to genetic resources must be based on the prior informed consent of the country of origin. Parties to the convention must also take “legislative, administrative or policy measures […] with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources” provided by another Party. In order to incorporate the CBD’s notions of prior informed consent and benefitsharing into countries’ patent legislation, developing countries have proposed an amendment to the TRIPS Agreement that would make it obligatory for WTO Members to require patent applicants to disclose the provider and country of origin of any biological resources or associated traditional knowledge used in their invention (Bridges Year 10, No.4, page 10).
Responding to comments by the US regarding its November 2005 submission that had highlighted several potential ‘biopiracy’ cases, Peru argued that an effective assessment of actual cases would require incorporating a universal obligation to disclose the origin/source/ legal provenance of biological resources in patent applications (IP/C/W/484). Such a requirement would facilitate the verification of the fulfilment of the patentability criteria of an invention based on genetic resources and/or TK, as well as the existence of prior informed consent and benefit-sharing arrangements. Brazil, Ecuador, China, India, Malaysia, Sri Lanka and Venezuela welcomed the paper, and called for text-based negotiations on incorporating disclosure requirements in the TRIPS Agreement.
Reiterating their belief that there is no conflict between the TRIPS Agreement and the CBD, Australia, Canada, the EU, Japan, Korea, New Zealand, Switzerland and the US said it would be premature to start amendment negotiations. Most of these countries supported the creation of traditional knowledge databases to assist patent examiners in assessing the novelty of an invention. Some indigenous groups have raised concerns over such databases, arguing that making the knowledge accessible to the public at large could impair the rights of knowledge holders.
Three Ratifications of the Public Health Waiver
Switzerland and El Salvador announced that they had ratified the December 2005 public health amendment to the TRIPS Agreement (the US is the only other WTO Members to have done so). The amendment makes permanent the decision adopted in 2003, which waived certain TRIPS obligations to allow Members to export drugs produced under compulsory licence (Bridges Year 10, No.1, page 22). It will be formally built into the TRIPS Agreement once two-thirds of the WTO membership have ratified the change.
For the waiver to become operational (i.e. to allow a country to export or import), WTO Members must incorporate its provisions into their national legislations. So far, Norway, India, the EU, Netherlands, Norway, Korea and Canada – all pharmaceutical exporters – have done so. Canada announced at the meeting that it was reviewing its ‘access to medicines’ legislation to examine how it could be improved. Among the importing countries, Kenya sought technical assistance to help incorporate the waiver into its national legislation.
The Council also reviewed China’s implementation of its TRIPS obligations (see page 8).