Intellectual Property Programme • Volume 12 • Number 37 • 6th November 2008

Coalition Continues to Press for Demands on Biodiversity and Geographical Indications

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The EU and many developing countries reaffirmed their support for a requirement to disclose the source of genetic resources in patent applications and for wider protection for geographical indications in WTO meetings on intellectual property held in Geneva last week. But opponents continued to resist such proposals.

At the same time, the Council of Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the Special Session of the TRIPS Council elected new chairs. The Ambassador of Trinidad and Tobago, Dennis Francis, was elected as the new Chairman of the TRIPS Council. The Ambassador of Barbados, Trevor Clarke, who is the chair of the Committee on Development and Intellectual Property of WIPO, was also confirmed as the new chair of the Special session of the Council for TRIPS. Both chairs are known for having played significant roles in various multilateral negotiations.

TRIPS and Doha: controversy continues

One of the primary sources of disagreement is whether some TRIPS issues should be part of the single undertaking in the WTO’s Doha Round negotiations on tariff-cutting deals on agricultural and industrial goods.

At issue are three topics on which talks have largely stalled in the TRIPS Council: extending to all products the strong protection currently accorded to geographical indications of wines and spirits (GI extension); making it mandatory for patent applicants to disclose the origin of any genetic resources and/or associated traditional knowledge involved in their inventions; and the establishment of a register for geographical indications (GIs) of wines and spirits.

Those who support the parallel consideration of the three TRIPS issues under the Doha negotiations continued to advance their case, making reference to the draft modalities that a coalition of more than one hundred countries put forward in July (TN/C/W/52) (see Bridges Weekly 16 July 2008, http://ictsd.net/i/news/bridgesweekly/12791/).

The EU confirmed its commitment to the common platform established under the draft modalities. Switzerland emphasised the importance it attaches to the parallel treatment of the three issues and the need for text based negotiations on the basis of the parameters determined in TN/C/W/52.

The EU further indicated that it supported a legally binding disclosure requirement regarding the country of origin or sources of genetic resources and associated traditional knowledge to all international, regional and national patent applications, at the earliest possible time. The EU demanded further discussion towards establishing a definition of ‘traditional knowledge’. According to the EU, the disclosure requirement might include a remedy that suspends the consideration of patent applications if the applying party either fails or refuses to disclose.

The countries that oppose this proposal — which include Australia, Canada, Chile, Mexico, New Zealand, South Korea, Taiwan and the US — have not taken a common position. Some have argued only against the parallel treatment of the three issues, while others have rejected outright the mere consideration of issues related to the Convention on Biological Diversity in the TRIPS forum. The US and Japan restated their position that there is no need to amend the TRIPS Agreement in order to introduce a disclosure requirement. Nevertheless, a proposal to do just that garnered the support of two-thirds of those present, including the addition of a new country, Sri Lanka which expressed its support for the TRIPS-CBD amendment.

During the Special Session, the EU, supported by several co-sponsors of the draft modalities for the TRIPS issues, said that the Special Session should focus on the three TRIPS negotiation issues in parallel and on equal footing. There was no common African Group position, since some countries such as South Africa are not in favour of the parallel treatment of TRIPS issues that include register for GIs. But Nigeria, among others, supported the parallel consideration of the three TRIPS issues. It is unclear if the Special Session can consider the three TRIPS issues without further guidance from the Ministers.

August 2003 Decision: revisions needed?

Canada informed the Council that it had authorised the first shipment of a low-cost HIV/AIDS drug produced under the ‘August 2003 Decision’ of the TRIPS Council. That decision waived certain provisions of the TRIPS Agreement so that countries could legally export generic drugs produced without the patent-holders’ consent to developing countries that are unable to produce the drugs themselves. The Canadian shipment, the first batch of medicine to be sent under five-year-old agreement, went to Rwanda (see Bridges Weekly, 25 September 2008, http://ictsd.net/i/news/bridgesweekly/29778/).

Critics of the August 2003 decision — which include many public health groups, developing countries, and some pharmaceutical companies — say that it requires an inordinate amount of notification, domestic legislative reforms, and other bureaucratic hurdles.

Ecuador complained about the complexity of implementing the August 2003 decision at last week’s meeting and requested countries to adopt a flexible approach under their domestic legislations. India also voiced its concerns about the procedures to implement the decision and asked Members to compile a list of domestic laws needed for such implementation.

A report by the WTO secretariat indicated that the protocol for amending the TRIPS Agreement in order to incorporate the August 2003 Decision received a total of 18 acceptance and ratifications. Jordan was the latest country to join that list.

LDCs request a new methodology for Technology Transfer

The Council considered proposals on technology transfer put forward by Canada, Japan, New Zealand, Norway, Switzerland, and the US.

Lesotho, on behalf of least-developed countries, or LDCs, called for a review of the implementation of Article 66.2 of the TRIPS Agreement, which obliges developed countries to provide incentives for domestic firms to transfer technology to LDCs. The Lesotho delegate said that there should be uniform reporting mechanisms, as well as clear parameters of what constitutes a technology transfer or a developed country incentive. The LDC position also held that incentives should not be targeted exclusively at the private sector, but that the measures should also encourage technology transfer from quasi-governmental agencies, public-private partnerships, educational institutions, research institutions and even government agencies. Technology transfer cannot be an incidental result of an un-related measure, the LDC representative said, pointing out that many developed country reports had given such an impression.

The LDCs further proposed that technology transfer should be carried out on less than commercial terms and in a manner that enables the effective use and adaptation by institutions in the recipient countries. The development of a self-assessment tool kit for ascertaining whether technology transfer has occurred would also help LDCs, the delegate said. Lesotho insisted on settling these issues no later than August 2009.

Technical cooperation and capacity building under TRIPS

The Council considered a new submission by Sierra Leone (IP/C/W/523) for a two-year intellectual property, or IP, technical assistance project that it will discuss with donors. The project stems from needs assessments that both Sierra Leone and Uganda conducted last year to determine the levels of technical and financial assistance they would need on IP-related matters. The US and the EU indicated that they found this approach useful for working with the two countries, and the EU mentioned it had already agreed to provide funding for Uganda.

The needs assessments are part of an effort to help these least-developed countries meet the obligations they will face when they join the TRIPS Agreement. A 2005 decision of the TRIPS Council gave LDCs until July 2013 to sign on to the agreement.

On the general issue of technical assistance under TRIPS, Brazil, supported by Argentina, Ecuador and Egypt, reiterated its June submission (IP/C/W/513) on the need to consider technical assistance in accordance with the principles agreed under the WIPO Development Agenda. But the US and Canada opposed the transfer of those issues to the WTO, particularly when some of those matters deal specifically with WIPO’s activities. Canada expressed its support for cooperation between WTO and WIPO on technical assistance.

ICTSD reporting.

One response to “Coalition Continues to Press for Demands on Biodiversity and Geographical Indications”

This week in review … Push continues for TRIPS amendment to protect biodiversity and TK « Traditional Knowledge Bulletin 11th November 2008 at 07:14
[...] 11 November 2008 This week in review … Push continues for TRIPS amendment to protect biodiversity and TK Posted by Elsa Tsioumani under Biodiversity, Indigenous and local communities, Intellectual Property, Meeting Documents & Reports, TRIPS, Traditional knowledge Coalition Continues to Press for Demands on Biodiversity and Geographical Indications [...]