Bridges Weekly Trade News Digest • Volume 6 • Number 32 • 25th September 2002
Still No Movement In TRIPS Council On Health Or GIS
Discussions on intellectual property rights and public health at the Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) continued to make little headway at the last session of the Council on 17-20 September. Apart from a new submission received from Switzerland, WTO Members made no progress in the debate, largely restating their positions.
Similarly, the debate on extending the higher level of protection for geographical indications to products other than wines and spirits remains deadlocked, which, as one trade source speculated, was unlikely to be broken in the TRIPs Council but would require some bargaining in the agriculture negotiations. Indeed, several countries, including the EC and Switzerland, have explicitly linked the GI discussions to the agriculture negotiations in both the TRIPs Council and the Committee on Agriculture (see BRIDGES Weekly, 13 September 2002).
Positions on TRIPs & health unchanged
WTO Members’ positions as stated at the June formal and July informal TRIPs Council meetings on paragraph 6 of the Doha Declaration on TRIPs and public health remained unchanged (see BRIDGES Weekly, 6 August 2002). TRIPs Council Chair, Ambassador Eduardo Pérez Motta (Mexico), noted that the Council was at the same point as it had been before the summer break and that more flexibility was needed on all sides.
Switzerland put forward a proposal outlining various conditions on exports covered by paragraph 6. In particular, the Swiss proposed the introduction of quantitative restrictions, i.e. manufacturers should only be allowed to produce the quantity needed by the recipient country, all of which should be exported to that country. Also, measures should be implemented to prevent diversion away from as well within the recipient country, with the responsibility resting on the exporting and importing countries. Such measures could include clear labelling, such as colouring or shape of the packaging. Regarding eligibility for importation, Switzerland proposed a general exemption for least-developed countries, while the rest of the membership, in particular developing countries, would assess their own eligibility on a case-by-case basis using objective criteria developed by the TRIPs Council.
Paragraph 6 of the Declaration instructs Members to find an "expeditious solution" to the problem that Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face in making effective use of compulsory licensing.
WSSD outcomes cited in support of moving on 27.3(b) and TK
In the Council’s discussions on TRIPs Article 27.3(b) (patentability of life forms), the relationship between the TRIPs Agreement, the Convention on Biological Diversity (CBD), and traditional knowledge (TK), WTO Members addressed many of the points raised in a "concept paper" submitted by the EC (see http://trade-info.cec.eu.int/europa/2001newround/comnr_trips.pdf). Some Members, including Brazil and Colombia on behalf of the Andean countries, cited the recent decision at the World Summit on Sustainable Development (WSSD) to negotiate an international regime on benefit-sharing as reflecting the high priority that should be given to these issues.
In its paper, the EC signalled its willingness to discuss the inclusion of disclosure requirements in patent applications, as repeatedly called for by a number of developing countries (see BRIDGES Trade BioRes, 11 July 2002) and most recently reiterated in the report of the UK Commission on Intellectual Property Rights (see BRIDGES Weekly, 18 September 2002). To this end, the EC proposed the inclusion of a "self-standing" requirement to include information on the geographic origin of genetic resources and traditional knowledge. Such a requirement, however, should not constitute an additional formal or substantial patentability criterion. Thus, failure to disclose should lie outside the patent law, but should, for instance, be regulated by civil or administrative law.
The next regular session of the TRIPs Council session will be held on 25-27 November. Issues related to paragraph 6 are scheduled to be addressed at an informal meeting on 17 October as well as in informal consultations in an effort to reach a final decision by the November TRIPs Council meeting. An informal meeting has also been scheduled for 10 November to discuss GI extensions.
ICTSD reporting.