Bridges Weekly Trade News Digest • Volume 10 • Number 10 • 22nd March 2006
TRIPS: Members Still Split On Relationship With CBD; GI Talks Going Nowhere
WTO Members remain divided on how best to achieve the objectives of biodiversity conservation and intellectual property protection so as to minimise the granting of ‘bad’ patents (i.e. erroneous patents incorporating naturally-occurring genetic resources). This was apparent both in the 14-15 March formal session of the Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as recent consultations hosted by Deputy Director-General Rufus Yerxa on the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD).
Positions remain largely unchanged in the TRIPS Council Special Session, where Members are discussing the creation of a multilateral register for the protection of geographical indications (GIs) for wines and spirits, as well as in a separate set of consultations run by Yerxa on whether the higher level of GI protection currently accorded to wines and spirits should be extended to other products.
Developing countries call for negotiations in TRIPS Council
Clarification of the TRIPS-CBD relationship is one of several ‘outstanding implementation issues’ referred to in Paragraph 12(b) of the 2001 Doha Declaration. In discussions on this relationship, which have been taking place in a series of consultations run by facilitators (currently Yerxa) named by the WTO Director-General, India, Brazil and Peru, mainly supported by other developing countries and Norway, have long called for amending the TRIPS Agreement to require patent seekers to disclose the origin and legal source of genetic resources and associated traditional knowledge used in their invention, along with evidence of prior informed consent and benefit-sharing (see for example BRIDGES Trade BioRes, 28 October 2005).
The Doha mandate also directed the TRIPS Council to consider the relationship between TRIPS and CBD and the protection of traditional knowledge and folklore as part of their mandatory review of TRIPS Article 27.3(b), which governs the patentability (or lack thereof) of plant and animal life forms.
In the 14-15 March TRIPS Council, the amendment-seeking countries called for the start of text-based negotiations on disclosure requirements as of late April, justifying it on the basis of Paragraph 39 of the Hong Kong Declaration, which calls for "any appropriate action" on the outstanding implementation issues by the end of July. They were emphatic that the discussions had evolved to the point that appropriate action constituted such negotiations. The US and Australia, however, rejected this as premature because of the persisting divergences in opinions on the appropriateness of a disclosure of origin requirement in patent law. Argentina came out in opposition to a multinational disclosure scheme at the meeting. The EU and Switzerland, while they support national-level disclosure obligations, continue to reject the notion of TRIPS obligations to do so.
This difference came out more clearly in Yerxa’s informal consultations, in which delegates responded to a set of questions that he had circulated in an attempt to focus the discussions., While Members agree on the need to avoid erroneous patents and ensure equitable and fair benefit sharing, they disagree on the role of disclosure requirements in achieving it. The US believes that a simple and rapid ‘challenge’ process would be sufficient to prevent bad patents, arguing that while a disclosure requirement did not prevent the granting of a ‘turmeric’ patent, allowing the patent to be contested led to its revocation. India countered that patent challenge proceedings were expensive for developing countries, and that mandatory disclosure would reduce the chances of approval of erroneous patents. Yerxa’s consultations are set to continue on 23 March (see BRIDGES Trade BioRes, 17 March 2006).
Deadlock persists on all GI issues
WTO Members also continued discussions on various GI-related issues over the past week, albeit with little in the way of progress.
Yerxa held informal consultations on ‘GI extension’ on 16 and 21 March, at which it was apparent that Members continue to disagree. Both camps sought to support their positions by referring to the positive or negative impact it would have on developing country economies. While opponents of GI extension, especially ‘new world’ countries such as Argentina, Brazil, Canada and Chile, reiterated concern about its high implementation costs, supporters like the EU, India and Sri Lanka pointed instead to the improved opportunities it would offer developing country producers to gain price premiums in export markets.
Countries’ views also remained unchanged in the formal negotiations on establishing a multilateral register for wines and spirits at the 16-17 March meeting of the TRIPS Council Special Session. The EU, based on its June 2005 submission (TN/IP/W/11) and supported by Switzerland and partly by Turkey, favours a system where registered terms would be protected in all WTO Member countries apart from those that have challenged the terms. In contrast, countries such as Argentina, Australia, Canada, Chile, the Dominican Republic, Ecuador, Mexico, New Zealand, Taiwan, and the US, want the register to be a simple notification system that countries could consult in order to decide whether or not to protect a term (as specified in a joint paper sponsored by these and other countries, TN/IP/W/10). Under Hong Kong’s compromise proposal (TN/IP/W/8), registered GIs would enjoy a more modest degree of protection, and that too only in the countries willing to participate in the system. At the meeting, Members discussed the legal effects of participation in the register and the administrative burden of implementation. Notably, even some developing countries that support GI extension thought that the cost of implementing the EU’s register would be unacceptably high.
Members agreed to hold consultations among themselves and with the chair in preparation for the next Special Session, scheduled for 12-13 June of this year.
The next formal TRIPS Council meeting (regular session) will take place on 14-15 June, and will be chaired by new Chair Ambassador Trevor Clarke of Barbados.
ICTSD reporting.