CBD-TRIPS DISCUSSION PICKING UP SPEED AT THE WTO

Meeting on 4-5 June and again briefly on 6 June, the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) received a number of proposals related to biodiversity and traditional knowledge. Momentum is again building on discussions at the WTO on these issues, which developing countries are hoping to address as part of the current round of trade negotiations.

The TRIPS Council received three new submissions related to the review of Article 27.3(b) (patentability of life forms), traditional knowledge (TK) and biodiversity from Switzerland (IP/C/W/400), the African Group (IP/C/W/404) and India on behalf of Brazil, Bolivia, Cuba, Dominican Republic, Ecuador, Thailand, Peru and Venezuela (IP/C/W/403).

The Swiss submission proposes an amendment to the World Intellectual Property Organisation's (WIPO's) Patent Cooperation Treaty that would enable countries to require patent applicants to declare the source of the genetic resources and TK in patent applications. Switzerland also reiterated the "crucial importance" of databases to protect TK. On the CBD-TRIPs relationship, Switzerland noted that both "can and should" be implemented without conflict and that there was no need to modify the provisions of either.

In contrast to the Swiss proposal, both the African Group's and the India-led submissions stress the need for a multilateral solution to these issues in the TRIPs Council, while also noting that any efforts in the WTO would not preclude work on these issues in other forums. They highlight the limited progress that has so far been made in WIPO's Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and note the limitations of national laws and contracts to prevent biopiracy at the international level.

The India-led proposal reiterates the countries' proposal for amending the TRIPs Agreement to require patent applicants to disclose the source of origin of the biological resource and associated TK, and evidence of prior informed consent and benefit-sharing (BRIDGES Trade BioRes, 11 July 2002). The submission also addresses a number of arguments against the proposal put forward by the US. By reiterating their proposal, the countries aim to ensure that this item remains on the agenda and that the proposal will be discussed and adopted as part of the Doha round of trade negotiations.

Similarly, the African Group notes that "any protection of genetic resources and TK will not be effective until international mechanisms are found and established within the framework of the TRIPs Agreement", and describes other means such as access contracts and databases as merely "supplementary". The African submission, however, goes considerably further in its scope than the India-led proposal by calling for Article 27.3(b) to be revised so as to prohibit patenting of plants, animals and micro-organisms. On traditional knowledge, the Group proposes to classify TK as a category of intellectual property rights and puts forward a draft Decision on TK for adoption by the TRIPs Council.

At the meeting, the EC noted that the Swiss proposal further developed many of the EC's own ideas, though the EC did not specify whether the issue should be addressed in the WTO or in WIPO. The EC again signalled its willingness to discuss mandatory disclosure of origin requirements (see BRIDGES Trade BioRes, 26 September 2002). The EC, however, rejected the African Group's call for a ban on patenting of life forms. While acknowledging that the Swiss proposal showed willingness to engage in discussions, one developing country trade source believed that restricting the debate to WIPO was not satisfactory as it would not oblige countries to address biopiracy through intellectual property rights.

For an update on other discussions at the TRIPs Council, including on TRIPs & health and special & differential treatment, see BRIDGES Weekly, 12 June 2003.

ICTSD reporting.