Bridges Weekly Trade News Digest • Volume 7 • Number 40 • 26th November 2003

TRIPS Council Shows Little Progress On Health And Biodiversity

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Discussions on public health at the 17-18 November meeting of the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) lacked the excitement of last year’s negotiations, and Members appeared to have given little thought to how to convert a 30 August 2003 Decision on paragraph 6 of the Doha Declaration (on access to generic medicines) into an amendment of the TRIPs Agreement, as called for in the Decision. Similarly, little new emerged from discussions on biodiversity, with countries largely reiterating previous proposals.

WTO Members on 30 August adopted a Decision on paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health, together with a statement by TRIPs Council Chair Ambassador Vanu Gopala Menon of Singapore (see BRIDGES Weekly, 4 September 2003). The Decision spells out the conditions under which countries without pharmaceutical manufacturing capacity can import generic versions of drugs still under patent. Paragraph 11 of the Decision instructs the TRIPs Council to initiate work by the end of 2003 on an amendment to the TRIPs Agreement to replace the provisions of the waiver contained in the Decision. The amendment should be adopted by the end of June 2004.

Health discussions to continue informally

Very little substantive discussion took place on TRIPs and health, and Members agreed to a suggestion by Chair Menon to hold informal consultations until the next TRIPs Council meeting in March 2004. Most Members stressed that this work should be a "technical" effort, without re-opening the substance of the Decision. A number of ideas were floated in the corridors, including making textual changes to the TRIPs Agreement itself (as favoured by the EC), adding an annex with the language of the waiver, or leaving the Agreement unchanged but adding a footnote referring to the waiver and the Chair’s statement (as preferred by the US).

Canada and Norway announced that they were already drafting or had drafted legal revisions to implement the Decision (see BRIDGES Weekly, 19 November 2003). Switzerland also said it was preparing a new law, adding that it was necessary to maintain the substance of the Decision unchanged when converting it to an amendment. The EC circulated a paper (IP/C/W/416, searchable at http://docsonline.wto.org/) in which it stressed the need to fully respect the terms of the Decision and for technical assistance to help implement it.

No progress on biodiversity

During the debate on issues related to Article 27.3(b) (patentability of life forms), traditional knowledge and biodiversity, various Members recalled their previous proposals, including Switzerland, the African Group and a group of developing countries led by India (see BRIDGES Weekly, 12 June 2003). Norway, the EC and Thailand supported a Swiss proposal to amend the World Intellectual Property Organisation (WIPO)’s Patent Cooperation Treaty (PCT) that would enable countries to require patent applicants to declare the source of the genetic resources and traditional knowledge in patent applications. The EC added that it was also willing to discuss other proposals for disclosure of origin, including inserting text in the TRIPs Agreement. The US, Japan, Canada and Australia opposed any discussion on this issue in the TRIPs Council, saying that it should be dealt with in WIPO’s Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The US said it would prefer to not change the patent system, but rather address disclosure and benefit-sharing through permits, contractual obligations and civil and/or criminal penalties.

Disclosure requirements were also discussed at a WIPO Working Group on the reform of the PCT at its 17-21 November meeting. As at the TRIPs Council, the US-led group of countries said these issues should be discussed in the IGC instead. One trade source claimed that the discussions in the two meetings highlighted the strategy of the US and others to use the IGC to undermine developing countries’ demand for amending the TRIPs Agreement. The source added that it was a "telling detail" that only developed countries had referred to the IGC in the TRIPs Council meeting, while no developing countries had mentioned it.

GI discussions on hold

Members did not discuss the issue of geographical indications (GI), which had been moved to the level of the Trade Negotiations Committee in December 2002 as part of the ‘implementation’ issues. Negotiations on the multilateral system for GIs have been temporarily suspended along with all other negotiating sessions.

In related developments, the European Commission’s Directorate-General for Trade in an initial draft paper circulated to EU member states has proposed that the EC take a more flexible approach to the contentious issue of GI extension (i.e. extending the additional protection already provided for wines and spirits to other products). Such flexibility could include agreeing to a transition period for entry into force of the extension, particularly for developing countries that do not have GI protection systems. DG Trade also suggested that the list of 41 foods and beverages for additional protection — put forward by the EC just prior to the Cancun Ministerial meeting — should be isolated from the negotiations on GIs in the TRIPs context, and discussed instead in the context of agriculture. The draft paper served as a basis for internal consultation purposes. A new EC strategy paper was adopted by the Commission on 26 November, and will be discussed by EU member states and the European Parliament. In the strategy paper, the EC continues to propose a more flexible approach on GIs.

The TRIPs Council sessions for next year have been tentatively scheduled for 8-10 March, 21-23 September and 30 November - 2 December.

ICTSD reporting; "EC Directorate offers more flexible approach to extend GI protection in Doha round talks," WTO REPORTER, 19 November 2003.

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