TWN Info Service on Intellectual Property Issues (Feb16/01)
23 February 2016
Third World Network 

WIPO: IGC still divided on genetic resources protection
Published in SUNS #8186 dated 23 February 2016

Geneva, 22 Feb (Mirza Alas) -- The World Intellectual Property Organization (WIPO) held its 29th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore on 15 to 19 February at its headquarters in Geneva.

The Committee met after more than one year's pause and after difficult negotiations during the WIPO assemblies last September, where developing countries had to push for the extension of the mandate of the Committee for two more years (2016-2017).

During the assembly, a work plan was established for the biennium on the process and progress that the Committee is supposed to make.

Last week's meeting focused on Genetic Resources. The meeting began by looking at the consolidated document WIPO/GRTKF/IC/26/4 as the basis for the week's discussion.

On Thursday (18 February), the facilitators presented a revised text with the objective of bridging the gaps and capturing the discussions of the week.

However, this was not accepted by Member States that felt the text did not reflect appropriately the discussions in plenary and they voiced their concern over the new text that had been added.

On Friday (19 February), informal meetings were held with the regional coordinators and plenary discussions were not resumed until late in the afternoon.

Back in the plenary on Friday afternoon, the Chair expressed that it was unfortunate that it was not possible to come to an agreement on a consolidated document and proceeded to provide a list of outstanding issues to be discussed in the next session.

The facilitators' text that was not agreed by the Member States will be annexed to the current consolidated text as an input for the coming discussions but would not substitute the current text.

The list of outstanding issues is long and it is unclear how countries will be able to bridge their vast differences.

The week saw very divergent views in key areas and some of these are described below:

DISCLOSURE REQUIREMENT

Developing countries have been calling for mandatory disclosure requirement as a fundamental part of protecting genetic resources (GRs) and their associated traditional knowledge (TK) from misappropriation.

However, countries such as the United States of America have consistently asserted that disclosure does not need to be a mandatory requirement and that in fact such a provision can hinder innovation and place additional burdens and cost to patent applicants and to intellectual property (IP) offices.

However, for a large number of developing countries, mandatory disclosure is a critical issue for ensuring the protection of GRs and associated TK; without this it would be almost impossible to identify IP claims that might involve GRs and to further investigate them.

Many developing countries explained that disclosure is currently used in national legislation around the world and this would complement the obligations under the Convention on Biological Diversity and its Nagoya Protocol on access and benefit sharing.

Even Australia asked the United States to provide evidence that the requirement for disclosure would in fact make patents too costly. The Australian delegation did not get an answer to this question.

The delegations of Canada, Japan, the Republic of Korea and the United States submitted a joint recommendation on the use of databases for the defensive protection of genetic resources and traditional knowledge associated with genetic resources, claiming that the erroneous granting of patents can be addressed by improving databases.

However, South Africa clearly stated that databases could only be complementary to the disclosure requirement, and this was also supported by the delegations of Ghana, Namibia and Indonesia among others.

NO IP CLAIMS ON LIFE FORMS

Article 3.5 of the current text with multiple brackets indicating lack of consensus, reads as follows:

[Genetic resources and [their derivatives] as found in nature or isolated there from shall/should not be considered as [inventions] [IP] and therefore no [IP] [patent] rights shall/should be granted]

The Bolivian delegation made a statement in support of retaining this key provision. Bolivia had originally proposed this text and reminded the IGC plenary that the patentability of life forms has moral and ethical implications and for many people it cannot be considered as a human invention.

Moreover, Bolivia added, the value of life cannot be reduced to simple economics.

The delegations of Brazil, Ecuador and Namibia voiced their support for Bolivia's intervention. Namibia also highlighted its own long-standing opposition on patents on life forms.

The United States and the European Union voiced their disagreement with the text and Italy stated that this Committee was not the forum to discuss the issue.

MISAPPROPRIATION

The current text contains two options for the definition of the concept of misappropriation.

Option 1

"Misappropriation" is the [acquisition] [utilization] of genetic resources, [their derivatives] [and] [or] [associated traditional knowledge] [traditional knowledge associated with genetic resources] without the [free] [prior informed] consent of [those who are authorized to give [such] consent] [competent authority] to such [acquisition] [utilization], [in accordance with national legislation] [of the country of origin or providing country].]

Option 2

["Misappropriation" is the use of genetic resources, [their derivatives] and/or [associated traditional knowledge] [traditional knowledge associated with genetic resources] of another where the genetic resources or traditional knowledge has been acquired by the user from the holder through improper means or a breach of confidence which results in a violation of national law in a provider country. Use of genetic resources, [their derivatives] and [associated traditional knowledge] [traditional knowledge associated with genetic resources] that has been acquired by lawful means, such as reading publications, purchase, independent discovery, reverse engineering and inadvertent disclosure resulting from the holders of genetic resources, [their derivatives] and [associated traditional knowledge] [traditional knowledge associated with genetic resources] failure to take reasonable protective measures, is not misappropriation.]

However, the facilitators' text had shortened option 2 of the text as follows:

["Misappropriation" is the use of genetic resources, [their derivatives] and/or [associated traditional knowledge] [traditional knowledge associated with genetic resources] of another where the genetic resources or traditional knowledge has been acquired by the user from the holder through improper means or a breach of confidence which results in a violation of national law in a provider country.

These changes to the proposed definition contained in the facilitators' text were not well received and reactions from Member States at the plenary were varied.

The United States asked for the deletion of the word ‘misappropriation' under the policy objectives and the inclusion of language on unauthorized access/use.

Earlier in the week when the definitions had been discussed, the United States delegation had claimed that the definition in the text did not reflect the definition in the dictionary and therefore it needed to be changed.

To this, many developing country delegations pointed out that the definition was supposed to be there for providing clarity to the protection of genetic resources and that a definition from a dictionary was of little use.

Developing countries also pointed out that adding unauthorized access/use was a different concept altogether.

Given the direction the discussion on the definition was taking, Namibia asked that the term ‘biopiracy' be also included.

During the discussion in plenary, the additions in language were being included in the text provided by the facilitators but since this text was later put aside it is unclear how all these suggestions would be captured for the coming meeting.

The definition of this concept remains one of the outstanding issues to be resolved for the next meeting.

Without clarity on this it would be difficult to agree on the policy objectives and other important aspects of the protection of genetic resources.

The next session of the IGC will take place in May and Member States have one more week to try and tackle a long list of outstanding/pending issues, particularly if consensus is to be reached. +