DEVELOPING COUNTRIES RAISE BIODIVERSITY CONCERNS IN WIPO

The WIPO [World Intellectual Property Organization] Standing Committee on the Law of Patents met on 25-29 November in Geneva to continue negotiations on a possible treaty covering substantive patent law at the international level. Among the issues discussed were proposals by several developing countries calling for flexibility to implement measures in pursuit of public policy objectives, including those related to health, environment and biodiversity.

The negotiations on the Substantive Patent Law Treaty (SPLT), underway since November 2000, constitute one of the fundamental pillars of WIPO's patent agenda together with the reform process of the Patent Cooperation Treaty and the Secretariat's efforts in marketing the Patent Law Treaty (see BRIDGES Trade BioRes, 10 October 2002). The SPLT would cover a number of basic legal principles that underpin the granting of patents in different countries.

Developing country proposals address environment and biodiversity

In the context of general exceptions and the ground for refusal or invalidation of patents, two developing country proposals were submitted related the protection of public health, the environment and other areas of importance to them, including the protection of genetic resources and traditional knowledge (TK). Specifically, the Dominican Republic on behalf of Chile, Colombia, Cuba, Ecuador, Honduras, Nicaragua, Peru and Venezuela -- supported by Brazil and Egypt -- proposed the inclusion of language stressing that nothing in the SPLT should limit countries' freedom "to comply with international obligations, including those relating to the protection of genetic resources, biological diversities, traditional knowledge and the environment" (Article 2.2). The countries thereby aimed to ensure flexibility to control access to TK and genetic resources under their jurisdiction in an effort to prevent unlawful appropriation and biopiracy.

The second proposal submitted by Brazil proposed the inclusion of public interest exceptions, stating that nothing in the Treaty should prevent countries from protecting "public health, nutrition and the environment" (Article 2.3). In addition, Brazil would like to see "compliance with applicable law on other matters" to be included as grounds for refusal of a claimed invention, including "law on public health, nutrition, ethics in scientific research, environment, access to genetic resources, protection of traditional knowledge and other areas of public interests" (Article 13.3). The two proposals were included in the draft Treaty in square brackets (i.e. not agreed) together with a footnote specifying that the Committee had agreed to include the paragraph in square brackets "but to postpone substantive discussion on these provisions".

Civil society groups starting to arrive

While it seems that the technical character of the Standing Committee's discussions has reduced the interest of many NGOs in demanding observer status, this barrier is starting to be overcome. Civil society groups are increasingly paying attention to the possible consequences that negotiations in WIPO could have on public policy areas, such as health, human rights, environment and development. Among the interested civil society groups is the international NGO Genetic Recourses Action International (GRAIN), which was accredited as an ad hoc observer to the Standing Committee at the November meeting. GRAIN has criticise the WIPO agenda in the past, noting that "setting up of a world patent system has huge implications. It means the end of patent policy as a tool for national development strategies". Regarding the SPLT, GRAIN has expressed concern that the Treaty could make the TRIPs Agreement obsolete as it would set up a fixed set of rules on what could be patented and under what conditions.

Additional Resources

Standing Committee on Patents' documents and country proposals can be found at
www.wipo.org/news/en/index.html?wipo_content_frame=/news/en/conferences.html

"WIPO Moves Toward 'World' Patent System," GRAIN, July 2002.

ICTSD reporting.