TWN Info Service on Intellectual Property Issues (July 07/01)

16 July 2007


ACTION NOT TALK NEEDED ON BIO-PIRACY, SAYS BRAZIL

More concrete action and less repetitive talk is needed on preventing bio-piracy in the World Intellectual Property Organisation, according to the Brazilian delegation, speaking at a meeting of WIPO's inter-governmental committee (IGC) on intellectual property, genetic resources, traditional knowledge and folklore meeting held in Geneva from 3-12 July 2007.

Please find below a SUNS report reproduced with permission.


Best Wishes
Sangeeta Shashikant
Third World Network
Tel: +41 (0) 22 908 3550
Fax: +41 (0) 22 908 3551

------------------------------------------------------

SUNS #6291 Thursday 12 July 2007

ACTION NOT TALK NEEDED ON BIO-PIRACY, SAYS BRAZIL


Geneva, 11 July (Elpidio Peria) -- More concrete action and less repetitive talk is needed on preventing bio-piracy in the World Intellectual Property Organisation, according to the Brazilian delegation, speaking at a meeting here of WIPO's inter-governmental committee (IGC) on intellectual property, genetic resources, traditional knowledge and folklore.

Brazil, represented by Mr. Guilherme Patriota, gave a critical assessment of the IGC discussions and said that some countries were continuing to make repetitive statements in order to avoid substantive discussions to address the problem of bio-piracy.

The Brazilian intervention on Tuesday was a highlight of the IGC meeting, which is taking place here from 3 to 12 July.

"If members are serious in concrete action, the IGC needs a shot of adrenalin," said Patriota. "The IGC has become a talk shop. Countries have been mainly repeating their positions 3, 4, 5 years ago. It might be interesting to hear them but it will not help us."
The frank Brazilian statement was made during a day of discussion on the issue of genetic resources. The traditional knowledge issue had been discussed on previous days.

Brazil reiterated the importance of mandatory disclosure requirements in the patenting of genetic resources as an item in the international agenda, noting that this has been dealt with in various fora and in a multilateral context.

Brazil's statement was endorsed by India, while several other developing countries, including the Africa Group, also supported mandatory disclosure requirements.

Brazil updated the IGC delegates on the developments in the TRIPS Council of the World Trade Organization (WTO) including the informal sessions of the Doha Round discussions.

The original proposal on mandatory disclosure requirements, which calls for an amendment to the TRIPS Agreement, now dubbed as Art. 29bis, was proposed by Brazil with 14 other developing countries. In the recent TRIPS Council meeting in June, the Africa Group also became co-sponsors, which now number 41. They were also supported from the floor by the LDC Group.

Patriota also noted the various developed-country proposals on disclosure requirements in the WTO and WIPO such as the ones tabled by the European Union, Norway and Switzerland, which even if different in approach and effect from the proposal of Brazil and the developing countries, point to an increasing momentum to address bio-piracy at the international level.

"I don't endorse the view that there is wide divergence among countries on this issue. I would rather say that there are a few countries who are opposed to this proposal," said Patriota.

The US and Japan have explicitly stated their opposition to the proposals on mandatory disclosure requirements being taken up by the WIPO, as they suggested instead alternative proposals relating to IPRs and genetic resources that are geared towards promoting appropriate access to genetic resources with prior informed consent and benefit-sharing, but without disclosure requirements.

Their sentiments were largely echoed by Canada, Australia and New Zealand.

The EU for its part has proposed a disclosure requirement that calls for the amendment of the Patent Cooperation Treaty or regional agreements such as the Regional (EU) Patent Convention.

In the EU proposal, the applicant should declare the country of origin if he is aware of it and the disclosure of information is done by the inclusion of questions in a standard patent application form and if the applicant refuses to disclose, the application will not be further processed and the applicant will be informed of this.

The sanctions for non-compliance with this requirement would be outside of intellectual property law and the character and level of sanctions must be determined by the contracting state.

The EU proposal also proposes a simple notification process that will be followed by patent offices, and the clearing-house mechanism of the Convention on Biological Diversity will be the central body to which the patent office will send the information on disclosure, not the Substantive Patent Law Treaty body in WIPO, and not the World Trade Organization.

Norway has also proposed in the WTO a mandatory disclosure requirement and includes in its proposal the consideration of relevant treaties under WIPO, the Patent Cooperation Treaty and the Patent Law Treaty. In its proposal, non-compliance with the mandatory disclosure proposal will not affect the validity of the patent.

Brazil informed the IGC that in informal discussions during the Doha Round negotiations, the issue of disclosure requirements was linked with the discussions on the extension of protection to geographical indications.

Patriota expressed his concern that in the Swiss proposal, the disclosure requirement is not mandatory, though it has some interesting technical solutions that appear to be well thought-out.

He also said that the Japanese proposal on databases that will help monitor the patenting of genetic resources and traditional knowledge is a proposal that is "up in the air" as it has no linkage with mandatory disclosure requirements and does not place additional responsibilities on those who seek patents on genetic resources aside from exposing traditional knowledge placed in the databases internationally.

As an alternative to this proposal, Brazil said that the WIPO Secretariat should help in studying the possibility of introducing changes in the patent classification to better indicate the categories of patents that are related to genetic resources.

This would be helpful, Patriota said, as the present patent system is not really transparent and does not clearly indicate where there are patents that have elements of genetic resources and traditional knowledge incorporated with it.

To assuage the fears of countries who are opposed to the disclosure proposal, he also said that the word "mandatory" has a relative meaning in WIPO, as the system has a built-in flexibility such that WIPO member-states are not necessarily forced to subscribe to these amendments and its mandatory nature would only apply to member-states who will agree to the proposal.

He further stated that the issue of mandatory disclosure requirements does not require a legally binding treaty, and Brazil has stated several times that they are not seeking to arrive at an additional substantive patent requirement.

Brazil's statement was endorsed by India, who said that it is only fair and equitable to have such mandatory disclosure requirements in patent applications involving genetic resources in order to promote a harmonious relationship between the TRIPS Agreement and the Convention on Biological Diversity.

Algeria, speaking for the African Group, said that the work in the IGC must be complementary and mutually supportive of work going on in other fora such as the WTO as well as in the CBD. It added that the IGC should also be cognizant of the work going on in the Substantive Patent Law Treaty on this issue.

The African Group has put forward an international sui generis framework for genetic resources and associated traditional knowledge based on a disclosure of origin, prior informed consent and benefit-sharing. Its statement was endorsed by South Africa, Senegal, Namibia and Iran.

Other countries that spoke in favour of WIPO undertaking more work on the mandatory disclosure requirements were Pakistan, Kenya, Thailand and Turkey.


However, a few developing countries did not seem to be in favour of a disclosure system. South Korea said that it had substantial concerns on the mandatory disclosure requirements, saying that "it is unreasonable that the majority (of the world's countries) who are not the majority as regards patenting activity would propose this burdensome requirement."

Singapore proposed a framework where the providers of traditional knowledge and genetic resources would have a system for easy identification of whether there has been prior informed consent.

It said, however, that the patent system should be encouraged to continue promoting new and innovative research and that current procedures should not be made cumbersome while the protection of traditional knowledge would not be hindered.