TWN Info Service on Health Issues (Mar11/03)
10 March 2011
Third World Network 

Positions unchanged on biodiversity issues, "Para 6" system
Published in  SUNS #7101 dated  4 March 2011

Geneva, 3 Mar (Kanaga Raja) -- A formal meeting of the regular TRIPS Council this week discussed the implementation of the "Paragraph 6" solution in respect of the Doha Declaration on the TRIPS Agreement and Public Health and three issues related to biodiversity, but saw little change in positions on these issues.

According to trade officials, there was also no change in the positions of members on the issue of non-violation complaints. A recommendation on the current moratorium needs to be made by the TRIPS Council to the next WTO Ministerial Conference, scheduled to take place in Geneva this December, trade officials added.

On the three related issues of review of the provisions of Article 27.3(b) of the TRIPS Agreement, the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), and the protection of traditional knowledge and folklore, trade officials said that positions remained largely unchanged.

According to trade officials, some delegations welcomed the recently resumed consultations chaired by Director-General Pascal Lamy (on the extension of protection of GIs to products other than wines and spirits and the TRIPS/CBD relationship, under the rubric of implementation-related issues).

Canada and Australia circulated papers that they had earlier presented in the consultations, as contributions to a fact-finding discussion on how countries deal with the misappropriation of genetic resources or biopiracy.

According to trade officials, the TRIPS Council also saw a presentation by Japan (as host country) of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization that was adopted by the Conference of the Parties (COP) to the UN Convention on Biological Diversity at its meeting last October in Nagoya.

Trade officials said that there was still no consensus on whether the CBD Secretariat should be invited to brief the TRIPS Council, which was why the task of briefing on the Nagoya Protocol fell to the host country, Japan.

Several members reiterated their call for a future briefing by the CBD. Trade officials however pointed out that there was again no consensus on this, as also on whether the CBD should have observer status in the TRIPS Council.

According to trade officials, members that supported the "disclosure" proposal (on amending the TRIPS Agreement to require amongst others patent applicants to disclose the origin of genetic resources and associated traditional knowledge) including Brazil, India, China, Peru, Angola (on behalf of the LDCs), South Africa, Indonesia, Colombia, Turkey, Ecuador and Kenya said that an amendment (of the TRIPS Agreement) is still needed on account of the fact that the Nagoya Protocol and the CBD do not make disclosure mandatory, and that not all WTO members have signed onto the CBD.

Other members including Canada and Australia reiterated their opposition to this, arguing that the Nagoya Protocol was only recently agreed and thus should not be renegotiated immediately, and that the TRIPS Agreement should not be used as a tool to enforce it, said trade officials. They continued to be of the view that misappropriation of genetic resources and bad patenting (biopiracy) are best tackled through databases, contracts and other means.

Also at the TRIPS Council meeting, trade officials said that Bolivia presented a more detailed paper on its proposal to amend Article 27.3(b) of the TRIPS Agreement to prohibit all forms of patenting of life and parts thereof (see separate article).

According to trade officials, Venezuela voiced agreement with Bolivia. Several others including Ecuador, China and Indonesia called for further study. Several countries including Australia, the European Union and Colombia were of the view that Article 27.3(b) is already flexible enough for countries to decide for themselves how to handle the issue of patenting, trade officials added.

According to trade officials, the TRIPS Council also held a discussion on the "Paragraph 6" system, which is aimed at helping developing countries with insufficient or no manufacturing capacities in the pharmaceutical sector to import cheaper generic medicines produced under compulsory licensing.

Trade officials said that the discussion was a follow-up to the annual review of the system that took place at the last meeting of the TRIPS Council last October (see SUNS #7030 dated 1 November 2010).

A number of questions that were posed by members at the annual review of the system last October were compiled into a list for this TRIPS Council meeting.

According to trade officials, some developed members including the European Union and Switzerland, responded to questions on how their laws or regulations dealt with their use of the "Para 6" system as potential exporters, for example, on technology transfer or ensuring that the generic medicines supplied are safe and effective.

Both the World Health Organization and the World Intellectual Property Organization also responded to some questions posed by members.

Some developing countries, said trade officials, reiterated that the "Para 6" system is not working because it has only been used once.

Several developed countries also voiced disappointment that potential importing countries did not reply to questions about their experience in using or trying to use the system and any obstacles they faced.

According to trade officials, some developing countries reiterated their call for a workshop to be held (on the implementation of the "Para 6" system) involving pharmaceutical companies, non-governmental organizations, health practitioners and others, which they said is necessary to answer these questions.

Some developed countries, said trade officials, reiterated that the "Para 6" system is for governments to implement and therefore, the experience of governments should be explored first in the TRIPS Council, leaving open the question of whether there should be a broader workshop afterwards.

The Chair, Mr Martin Glass of Hong Kong-China, at the end of the meeting, handed over the Chairmanship of the Council to Ambassador Federico A Gonzalez of Paraguay. +