Changes sought in TRIPS, some now, others by end 2000

by Chakravarthi Raghavan

Geneva, 5 Oct 99 -- The like-minded group (LMG) of developing countries at the WTO have put forward proposals for changes in the TRIPS agreement to operationalise its technology transfer provisions and make Art 27.3 compatible with the Convention on Biodiversity.

Last week, at the informal General Council meeting preparing a draft Ministerial Declaration for Seattle, the group put forward two sets of proposals: one on implementation issues of existing agreements to be addressed and resolved before or at Seattle in the Ministerial Declaration, and a second on the implementation issues to be addressed and resolved by 1 Jan 2001.

Under the first set of issues to be resolved before or at Seattle, the group consisting of (Cuba, Dominican Republic, Egypt, El Salvador, Honduras, India, Indonesia, Malaysia, Pakistan and Uganda) in relation to the TRIPS agreement have called for:

* extension of protection of geographical indications (Articles 23 and 24 of TRIPS) to products other than wines and spirits;

* pending thorough examination and review, patents inconsistent with Art.15 of the UN Convention on Bio-Diversity (CBD) are not to be granted by any WTO member;

* Art. 64.2 of TRIPS shall be modified to make clear that 'non- violation' complaints -- under Art. XXIII (b) and (c) -- shall not apply to the TRIPS Agreement;

* provisions of Art 66.2 (requiring developed countries to provide incentives to enterprises and institutions to promote technology transfer to LDCs), shall be made obligatory and subject to periodic notifications, monitoring by the TRIPS Council of their effective implementation, and the provisions being extended to all developing countries;

[Though Art. 66.2, provision of incentives, is couched in mandatory "shall", in the TRIPS Council so far, despite repeated efforts, industrialized countries have declined to disclose the details of incentives given and any monitoring they do to follow it up.]

* extending by five years from the date of completion of review, the period for implementation of provisions of Art.27.3 (b), exclusion from patentability (of plants and animals, other than micro-organisms, and essentially biological processes for plants or animals), but subject to a sui generis system being put in place, and protection for plant varieties;

* inclusion of 'essential drugs' of the World Health Organization from the list of exceptions to patentability under Art.27.3 (b).

Another set of proposals on TRIPS are in the group of issues put forward by the group, and which call for the Seattle meeting's declaration providing for these implementation issues to be addressed and completed by 1 January 2001.

Under TRIPS, among these, the group has made four proposals.

1. On transfer of technology, they call for operationalising Article 7 and 8 of the TRIPS which provide for transfer of technology on fair and mutually advantageous terms;

2. Art. 27.3 (b) to be amended in the light of the provisions of the CBD and the (FAO) International Undertaking, in which the conservation and sustainable use of biological diversity, protection of rights and privileges of indigenous and local communities, and the promotion of farmers' rights are fully taken into account;

3. Further, the review of the substantive provisions of Art.27.3(b) should:

- Clarify the artificial distinctions between biological and micro-biological organisms and processes;

[Several molecular biologists and micro-biologists have said this distinction is artificial and unscientific, and based on a time period in science when the ability to look at these via an ordinary microscope was the criteria used to distinguish between micro- and macro-organisms.]

- ensure continuation of the traditional farming practices including the right to save, exchange and save seeds, and sell their harvest; and

- prevent anti-competitive practices which will threaten food sovereignty of people in developing countries, as permitted by Article 31 of the TRIPS Agreement. (SUNS4523)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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