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TWN Info Service on Biodiversity and Traditional Knowledge (Feb14/04)
5 February 2014
Third World Network

WIPO: Genetic resources negotiations move slowly, Member State views repeated

Geneva, 5 February (Alexandra Bhattacharya) – Differences between developing and developed countries continue to dominate negotiations on a legal instrument on intellectual property and genetic resources at the World Intellectual Property Organization.

During the morning session of the second day (4 February) of the 26th session of the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC), the Expert Working Group delved into substantive discussions on the proposed instrument. The basis for work was the Consolidated Document Relating to Intellectual Property And Genetic Resources (WIPO/GRTKF/IC/26/4).  The session is taking place on 3-7 February in Geneva.

(The Expert Working Group comprises a maximum of 6 delegates from each region with a live audio transmission of the proceedings to the plenary room of the IGC session.)

However, there was no detailed engagement with the text but rather a recapitulation and putting forward of main points of view and  “landing zones”. The Chair noted that this was an attempt to “reduce the Christmas tree effect in the current text”.

The discussion focused on (i) Principle Objectives; (ii) Subject Matter (Article 1); (iii) Beneficiaries (Article 2); and (iv) Scope of the instrument (Article 3) which includes the option of disclosure protection.

(i)        Policy Objectives

The Chair stated that  “Policy Objectives” were currently based on three essential elements: (i) the relationship between existing international/national laws relating to genetic resources (the Convention on Biological Diversity and its Nagoya Protocol on access and benefit sharing) and the current instrument; (ii) how this instrument could address the issue of quality of patents and the prevention of the granting of erroneous patents; (iii) how this instrument contribute to the prevention of misappropriation of legitimately held subject matter i.e genetic resources.

(a)   Relationship with national and international laws

The Chair noted that this discussion should take into account that not all Members of the current process were Parties to the Convention on Biological Diversity (CBD) and the Nagoya Protocol. In this context, there was a need to ascertain whether a “complementary approach” to these other instruments was possible. The Chair posed the question: “how do we see this instrument relating to other instruments covering genetic resources (GRs)?”

The United States said that “complementaryis desirable but we cannot accept consistency with any agreement we are not party to”.

Switzerland proposed the use of the term “ mutually supportive” which should not duplicate or contradict what already existed.

Canada said that the defensive measures proposed could address the same concerns that motivate access and benefit sharing (ABS) frameworks. It supported the view of “ complementarity” rather than “mutual supportiveness”.

Iran said that the instrument should be mutually supportive of other existing instruments on GRs in the international area. There was also a desire not to see subordination or hierarchy between these instruments.

Indonesia said that the current instrument should be prioritized.

Argentina said that aside from the CBD and Nagoya Protocol, UPOV (The International Union for the Protection of New Varieties of Plants) should be another reference point.

The Indigenous Caucus said that there was a need to guarantee coherence with other instruments and attached priority to prior informed consent in line with other treaties. In this context, harmonization with other instruments was necessary

The Chair in summarizing said that there were two close approaches: that of complementarity and mutual supportiveness. He said that it should be clear the current instrument should not require action by States which would be deemed as ultra vires. With regard to the proposal for harmonization, the Chair said that this would raise the bar to non-Parties to those treaties (CBD, Nagoya Protocol) and would be “unrealistic”. Differing views were also raised regarding “no hierarchy” between the instruments and of the “priority” of the current instrument.

(b)  Prevention of misappropriation of legitimately held subject matter i.e. genetic resources

South Africa said that an exhaustive discussion on this issue had been held during the last session in April (2013). It stated that the issue of misappropriation was not addressed in the discussion on granting of erroneous patents.

The Chair said with respect to the issue of prevention of misappropriation there was a need to calibrate and balance the instrument.

Peru said it was important to establish rights and the requirement of disclosure by requiring proof of legal access to the GR avoids misappropriation.

The US said that  “misappropriation” had a number of definitions and it didn't want to see it included in the instrument.

The Chair said this objective would need to be bracketed, and that “We won’t get clean text on misappropriation”.

Nigeria said that the reason for the bracket on “misappropriation” was because it was taken broadly. It said that as long as there was aright to resources, there were ways in which the right could be violated. There was a need to minimize the scope of the objective.

The Chair stated that the commitment to this objective was not an endorsement of the ABS regime (of the CBD and Nagoya Protocol).

India said that there should be elements included in the objective which did not undermine the CBD and Nagoya Protocol otherwise “we will be losing the spirit of mutual supportiveness that we agreed to.”

The Indigenous Caucus said that the reason for their participation was that there was no other UN forum which was more legitimate  “to deal with issue of IPRs granted over our GRs and knowledge”

Canada said that there was an overlap between “misappropriation” in ABS and “misappropriation” as defined in granting patents in error. For the prevention of misappropriation there were safeguards of the patent system. There was a need to define “ misappropriation” by strictly looking at what it was doing.

The Chair in summarizing said that he didn't sense an opposition to the protection of rights legitimately held where appropriate, and did not detect a “fundamental discomfort or objection to the concept of preventing misappropriation”. However, the discussion could not move forward without seeking ways to address misappropriation.

(c) Prevention of erroneous granting of patents

Mexico noted the need to establish a basis for patent examiners to search (for TK). It questioned how this information will be placed in the databases as some of this data was confidential.

(ii)       Article 1: Subject Matter

The Chair said that there was sense in not being overly prescriptive in the subject matter definition. The fact that it was being treated within the context of an IP instrument would suffice and there was no need for further precision. He added that there would be another place for the definition of the subject matter and there was no need to be prescriptive now.  He added that there were concerns about ensuring that the definition of subject matter did not prejudge elements being negotiated. In this context, the facilitator would shape a broad non-prescriptive approach for subject matter.

Peru agreed that the subject matter should be limited to IP but would like to work broadly with IP rights obtained, such as those related to derivatives. This view was shared by Bolivia.

The European Union said that the subject matter should be limited to patents. It added that it was not sure what the function of the article would be if not to circumscribe.

(iii)     Article 2: Beneficiaries

Nigeria and Australia both questioned the need to have a paragraph on beneficiaries and said that this should be left to the states to decide.

This article was not discussed extensively.

(iv)      Article 3: Scope

The Chair said that the scope of the instrument should pull on the discussion on objectives. The two elements in the scope currently included defensive and offensive (disclosure) elements.

Disclosure

The Chair posed the question “Can disclosure help to prevent misappropriation of rights in the subject matter, assist in the granting of erroneous granting of patents, and what are the acceptable forms of doing so?”

South Africa said the information which was critical to avoid the erroneous granting of patents needed to be listed in one form or another. The departure point was to elicit this information. In terms of IP, the person who wants the exclusive right had to ensure that there was the right information. Therefore, the subsequent discussion should be on the nature of the information.

India said that someone who was applying for IPRs needed to be aware of prior rights which could exist and it was important for the applicant to disclose those rights.

The Indigenous Caucus said that disclosure placed the burden on those who wanted to do research and development and this was appropriate.

The call for a mandatory disclosure requirement was reiterated by Indonesia, Colombia and Brazil.

Peru said the disclosure requirement was broader than what was required in patent applications.

Brazil said that the idea was to have a simple system and to avoid an excessive burden to the offices and the patent holders.

Mexico said there was a need to ascertain the objective of disclosure as there were different requirements when relating to misappropriation and the granting of erroneous patents.

The Chair noted that there had always been certainpractical challenges with regard to the disclosure requirement, particularly regarding industries using GRs. He urged Member States to explain what “exactly was the problematic” with regard to the disclosure requirement.

The US said that at the heart of the matter was that with the disclosure requirement at national level, the non-compliance by industry could result in the denial of a patent right and additionally competitors could use this as a source of a patent challenge. All of this created a cloud of uncertainty which harmed innovation.

It further referred to an example of a strain of wheat, varieties of which came from different competitors. With the disclosure requirement, this wheat would never come to the market. Regardless of what was contained in the disclosure requirement, the linking to national ABS regimes could cause companies to go out of business, according to the US.

The Chair said the discussion could not go into the legitimate fears of lobbies and this was up to national legislation to circumscribe/mitigate their concerns. He added that it was not clear about what these companies do when most bio-diverse countries have disclosure requirements. He said that it was strange to reach the conclusion that that not having an international regime left the user better off and that the user preferred to deal with uncertain different regimes.

The US in response that that “you are talking about tweaking a system that has never been tested” and that it was up to individual business decisions, size of markets etc.

The EU said “it could live with the disclosure requirement as long as safeguards are in place”.

The Chair additionally noted that the EU had begun to implement a “balanced regime” and further information would be useful in constructing solutions.

Nigeria said that the essence of disclosure requirement was linked to the IP system and the desire to manage the interests of source communities. The disclosure requirement was also used (i) by states as a policy tool; (ii) as information basis for communities; (iii) if any source community was concerned regarding the granting of patents it could make a decision as a source community.

South Africa referred to the 6 principles articulated by the Swiss Ambassador at  high level exchange segment on Monday, 3 February (meeting of ambassadors and senior capital-based officials):

  • disclosure fits in with transparency
  • predictability
  • legal certainty
  • practicability and utility
  • setting the max demands
  • necessity and specificity.

It added that there was scope for education and advocacy amongst countries with regard to the disclosure requirement as long as there was a willingness to do so.

(iv)      Next Steps

  • The afternoon of day two was used by the facilitators for informal consultations on key issues including the disclosure requirement.
  • The Expert Working Group will resume on the morning of 5 February and continue the discussion on Article 3 (Scope) including the disclosure requirement.
  • A substantive revision of the text by the facilitators is only expected after the % February morning session.

 


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