TWN Info Service on Health Issues (Mar08/01)
19 March 2008
Third World Network

TRIPS:  Majority of WTO members now support disclosure proposal
Published in SUNS #6436 dated 17 March 2008

Martin Khor, Geneva, 14 March 2008

A majority of WTO members are now supporting the proposal to amend the WTO's TRIPS agreement so as to include a disclosure requirement for patent applications relating to genetic resources and traditional knowledge.

The ACP Group is the latest to have formally indicated (in a notice of 22 January) that their members are joining the list of co-sponsors of the proposal (WT/GC/W/564/Rev. 2) that was originally made by India, Brazil, Peru and other countries.

Last year, the Africa Group and the LDC Group also officially informed the Council that they were co-sponsoring the proposal.

Developing-country diplomatic sources said that there are now almost 80 countries that are officially supporting the disclosure proposal.

The main advocates of the disclosure proposal (including India and Brazil) reiterated their position at a regular TRIPS Council meeting at the WTO on Thursday (13 March).

They also maintained that the issue should be included in the expected forthcoming negotiations in the "horizontal process", which is the next stage of the Doha Round.

In this horizontal process, agriculture and NAMA are to be negotiated together; and some members are also advocating that services and rules be discussed within or alongside this process; while the EU is advocating that geographical indications be also included, and India (supported by some developing countries) also want the disclosure issue to figure in this process.

WTO members believe that the best hope for their issue to be seriously considered for a decision is to be part of the package in the horizontal process.

India asked that the discussion on this issue should now move to a text-based negotiation. The developing countries have already submitted a draft of such a text.

However, developed countries at the TRIPS Council meeting also maintained their position, which is to oppose an amendment to the TRIPS Agreement, which they said would not solve the problems.

The developing-country proposal is for an amendment to the TRIPS Agreement so that it would be mandatory for countries to have in their national patent laws a requirement for patent applicants to disclose the countries of origin of biological materials and traditional knowledge used in their inventions, as well as evidence of prior informed consent and benefit sharing arrangements with the countries of origin and relevant local communities.

The disclosure proposal was discussed under the agenda items of the review of Article 27.3 (b) of TRIPS, the relation between the TRIPS agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore. It is also being negotiated under the "implementation issues" of the Doha negotiations.

Among the advocates, India made the most detailed statement. It said that the Doha Round is a Development Round and its results would not be complete if it fell short of correcting the imbalance in the TRIPS agreement caused by its failure to protect genetic resources and traditional knowledge. For India, an outcome on this issue is an essential element of any "development package" that emerges from the Round.

"The growing support base for the proposal, including co-sponsorship by the African Group, the LDC Group and the ACP Group has taken the co-sponsoring countries beyond the majority membership mark," said India. These are sufficient indications that text-based negotiations on the basis of the submission made in IP/C/W/474 must begin soon.

In this context, said India, the proponents of the Disclosure Proposal have already submitted a text proposal on TRIPS and CBD for inclusion in the horizontal modalities decision. The work in the TRIPS Council should complement the work on this issue in the negotiating process.

India added that Doha Mandate provides that negotiations on outstanding implementation issues shall be an integral part of the Work Programme. The relationship between the TRIPS Agreement and CBD is a critical implementation issue for developing countries. The objectives of the Disclosure Proposal (IP/C/W/474), of which India is a key proponent, are shared by all Members.

India stressed that there is general agreement among members on preventing bio-piracy, erroneously granted patents and enhancing mutual supportiveness between the TRIPS Agreement and the CBD.

The Disclosure Proposal seeks to meet these objectives through amendment of the TRIPS Agreement to include mandatory disclosure requirements, prior informed consent and access and benefit sharing, thus meeting the three core concerns of the CBD. This would also make the patent system transparent and credible, said India. Obviously, to be effective, it calls for legal consequences for non-compliance.

Added India: "The failure of the TRIPS Agreement to extend protection to genetic resources and traditional knowledge, which developing country Members enjoy in abundance, is one of the factors leading to an imbalance in the TRIPS Agreement and in the multilateral trading system as a whole.

"Under the TRIPS Agreement, countries have no obligation to examine whether there is misappropriation of genetic resources and traditional knowledge in patent applications. Misappropriation of genetic resources and traditional knowledge and bio-piracy are issues with an international dimension and therefore need international obligations to be addressed in a satisfactory way.

"While national access and benefit sharing systems and databases on genetic resources can help, to some extent, in preventing bio-piracy, they are far from solving the problem."

India said the two submissions made by Peru in previous meetings highlight some of the main problems faced by mega-diverse countries -- trans-boundary use of genetic resources, bio-piracy and erroneously granted patents. Without adequate and effective protection of genetic resources and TK at the international level, the problem will continue.

India also expressed appreciation of the proposals made by some developed countries which come very close to the Disclosure Proposal.

According to trade officials, Japan, South Korea, the US, Australia, New Zealand and others continued to argue that amending the TRIPS Agreement would not solve the problems of bio-piracy and erroneous patenting.

Another issue discussed at the meeting was technical assistance.

Sierra Leone and Uganda identified priority needs to assist them to meet the obligations they will face when they apply the TRIPS Agreement. It was agreed that this will be discussed in greater depth in consultations in the same week as the next Council meeting, in June.

The two countries face the new deadline for LDCs to implement TRIPS by 1 July 2013, under a decision in 2005 to extend the TRIPS implementation deadline for LDCs.

The meeting also heard Vietnam (which joined the WTO in January 2007) explaining its intellectual property laws under the "review of legislation", which all members applying the TRIPS Agreement have to go through. Members will submit questions, which Vietnam will reply to in the next meeting.

The meeting also saw continued disagreement on whether the Secretariat of the Convention on Biological Diversity should be an observer in the Council, even if invited ad hoc meeting-by-meeting. The chairperson said there was flexibility from one member previously opposing this, but continued objection from another.

At the end of the meeting, the Chair of the Council, Ambassador Yonov Agah of Nigeria, handed the chairmanship over to Ambassador Gail Marie Mathurin of Jamaica.

The next meetings of the Council will be on 17-18 June and 28-29 October. +