TWN Info Service on WTO and Trade Issues (June07/09)

15 June  2007

Support grows for TRIPS disclosure proposal

The proposal by 11 developing countries to amend the TRIPS Agreement to require disclosure on and prior informed consent of countries of origin of genetic resources and traditional knowledge received a major boost when the 41-member Africa Group announced its decision to co-sponsor the proposal.

The issue came up at the TRIPS Council meeting on 5 June.

The meeting also discussed the controversial topic of enforcement of IPRs.  Many developing countries insisted that enforcement must not be a permanent item on the Council's agenda. The developed countries however again attempted to have a discussion on this issue.

Below is a report on the TRIPS meeting.  It appeared in SUNS of 7 June.

With best wishes
Martin Khor
TWN

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Support grows for TRIPS disclosure as Africa joins proposal

By Martin Khor (TWN) Geneva, 6 June 2007

The proposal by 11 developing countries to amend the World Trade Organisation's TRIPS Agreement to require disclosure on and prior informed consent of countries of origin of genetic resources and traditional knowledge received a major boost this week when the 41-member Africa Group announced its decision to co-sponsor the proposal.

The joining of the Africa Group as well as Venezuela was announced in statements made by these WTO members at the formal TRIPS Council meeting held on Tuesday (5 June). The number of countries co-sponsoring the proposal has now climbed to 52.

In addition, the least developed country group (LDC), comprising 31 members, also made a statement from the floor supporting the proposal. Many WTO members are in both the Africa and LDC groups.

The proposal is that the TRIPS agreement be amended to require that patent applications relating to genetic resources and associated traditional knowledge have to be accompanied by disclosure of the countries of origin and proof of prior informed consent of and benefit sharing with the countries of origin.

The two main issues discussed at the TRIPS Council meeting were the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the controversial topic of enforcement of IPRs.

On the latter issue, many developing countries insisted that enforcement must not be a permanent item on the Council's agenda. The developed countries however again attempted to have a discussion on this issue, with Switzerland presenting a new paper on the use of border controls to enforce IPRs.

On the TRIPS/CBD relation, momentum is building up on the developing countries' proposal for amending TRIPS. The original co-sponsors are Brazil, China, Colombia, Cuba, Ecuador, India, Pakistan, Peru, South Africa, Thailand and Tanzania. They are now joined by the Africa Group and Venezuela.

There is broad agreement in the TRIPS Council that there is national sovereignty over biological resources, and that the misappropriation of genetic resources and traditional knowledge associated with these resources, and the erroneous granting of patents related to these, are not acceptable and should be addressed.

However, WTO members are divided on how to address this issue. The discussion is taking place in the context of the relationship between TRIPS and CBD.

At the Council meeting, many developing countries continued to argue that the proposed amendment to the TRIPS agreement is needed to curb misappropriation and erroneous patenting.

In their view, this is an important development issue in the Doha negotiations, and have to be dealt with in the context of the Doha outcome.

According to trade officials, the developing countries who spoke on these lines included the African Group (represented by Uganda), the LDC group (represented by Lesotho), Angola, China, Tanzania, Brazil, India, Thailand, Pakistan, Peru, Ecuador and Venezuela.

Brazil, one of the leading proponents, said that there is a shared objective that no one contests, which is to address misappropriation of genetic resources and erroneous granting of patents. Addressing it is a very important development outcome of the Doha negotiations.

According to Brazil, there are many national regimes proliferating on this issue, with different national models. There is interest for industry to have a standard clause in TRIPS that members then apply in each country.

Brazil added that disclosure should be mandatory, multilaterally-based, binding and providing a solution to the problem internationally, and this is why a solution within TRIPS is needed.

Brazil said that with the enhanced support of the Africa and LDC groups, the political will behind the proposal is gaining momentum and technical solutions should now be looked at more seriously.

Although the United States says that there is a divergence of views, this gap is now narrowed because of the co-sponsorship of the Africa Group. Brazil also welcomed the proposal of Norway on disclosure.

Several developed countries remained cool to the proposal to amend the TRIPS, including the US, Canada, Japan, Korea, New Zealand and Australia. They spoke against focusing the discussion on textual changes to TRIPS, and called instead for an approach based on sharing experiences and use of contracts and databases to improve the practice of patenting.

At the meeting, they remained unconvinced that disclosure will prevent misappropriation and bad patenting, according to trade officials.

The EU repeated its more limited proposal on disclosure that would include some sanctions for failure to disclose but not the revocation of the patent.

The developing countries' proposal is in IP/C/W/474 (dated 6 July 2006). It proposes the adoption of a new Article 29 bis in the TRIPS Agreement on Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge.

The main clauses of the proposed text are: "Where the subject matter of a patent application concerns, is derived from or developed with biological resources and/or associated traditional knowledge, Members shall require applicants to disclose the country providing the resources and/or associated traditional knowledge, from whom in the providing country they were obtained, and, as known after reasonable inquiry, the country of origin. Members shall also require that applicants provide information including evidence of compliance with the applicable legal requirements in the providing country for prior informed consent for access and fair and equitable benefit-sharing arising from the commercial or other utilization of such resources and/or associated traditional knowledge.

"Members shall require applicants or patentees to supplement and to correct the information including evidence provided under paragraph 2 of this Article in light of new information of which they become aware.

"Members shall publish the information disclosed in accordance with paragraphs 2 and 3 of this Article jointly with the application or grant, whichever is made first. Where an applicant or patentee provides further information required under paragraph 3 after publication, the additional information shall also be published without undue delay.

"Members shall put in place effective enforcement procedures so as to ensure compliance with the obligations set out in paragraphs 2 and 3 of this Article.

In particular, Members shall ensure that administrative and/or judicial authorities have the authority to prevent the further processing of an application or the grant of a patent and to revoke, subject to the provisions of Article 32 of this Agreement, or render unenforceable a patent when the applicant has, knowingly or with reasonable grounds to know, failed to comply with the obligations in paragraphs 2 and 3 of this Article or provided false or fraudulent information."

The TRIPS Council meeting also continued its debate on whether enforcement of IPRs is a matter to be discussed in the Council.

Switzerland said that it asked for this item to be put on the agenda because of its new paper. Several developing countries objected to even discussing the issue. Responding to them, Switzerland said that it was aware of the opposition and was not seeking to make this a permanent agenda item, and asked members to view the subject with an open mind.

The new Swiss paper (IP/C/W/492 dated 31 May) makes a case that border measures have a crucial role as an effective enforcement strategy against the proliferation of counterfeited and pirated goods.

The customs authorities have a primary role in enforcing IPRs. Switzerland advocated that IPR holders should be allowed to be involved by providing information and filing applications to Customs authorities to take measures on imports and exports.

The paper gives details of the Swiss system of border measures that rely on information and coordination, particularly from rights-holders. It called for more information exchange among customs authorities at regional, national and international levels.

Several developed countries supported the Swiss paper. Japan, Canada, the EU, New Zealand and the US said it is important for members to share their experiences in concrete terms on how they enforce the TRIPS Agreement, and mentioned their own programmes.

However, the developing countries were adamant that enforcement should not be on the agenda of the TRIPS Council. Before the agenda was adopted and later in the discussion, China, Brazil, Argentina, India, the Philippines and Cuba repeated their concern about discussing this subject at all.

The developing countries said there is no mandate for discussing this in the TRIPS Council as the TRIPS Agreement allows countries to decide how to implement it. They added that the Council should spend its time better on issues that are important to developing countries.

However, Switzerland, the EU, Japan and Canada said the discussion comes under the TRIPS Agreement's mandate for the Council to monitor the implementation and compliance with the agreement. The EU said members should not start to "censor" one another.

The Council also discussed the issue of geographical indications. According to trade officials, the review of these provisions under Article 24.2 remains deadlocked on procedure.

The EU and Switzerland continued to press for a "systemic" review of the application of the provisions on this based on information from members compiled in a Secretariat document. Other countries such as Australia, the US and Canada wanted an examination provision by provision.

On the issue of TRIPS and public health, it was announced that seven countries have now now formally notified their acceptance of the amendment of the TRIPS Agreement, on compulsory licensing of drug patents for export to countries that lack the capacity to manufacture the products.

The chairperson of the TRIPS Council, Ambassador Agah of Nigeria, urged other countries to follow so that the end-of-year deadline can be met. +