DEVELOPING COUNTRIES: MOUNTING SUPPORT FOR TRIPS AMENDMENT TO PROTECT BIODIVERSITY

Longstanding differences on whether WTO rules should be altered to require patent applicants to disclose the use of any biological resources or associated traditional knowledge - on pain of patent revocation - featured prominently at a 13 March meeting of the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Brazil, India, Cuba, Peru, Ecuador, Pakistan, Thailand, and Venezuela said there was significant and growing support among the WTO Membership for an amendment of the sort they had proposed in order to protect biodiversity (IP/C/W/474, available at http://docsonline.wto.org). Uganda expressed a similar view, on behalf of the group of least-developed countries.

Their proposed amendment would include a mandatory requirement to disclose the origin of biological resources and/or associated traditional knowledge in patent applications. It would also require evidence of compliance with prior informed consent and fair and equitable benefit sharing arising from the commercial or other utilisation of such resources and knowledge. They argue that such an amendment - with the threat of revocation if disclosure requirements are not adequately met - is necessary to prevent 'biopiracy'.

The Dominican Republic and the group of African, Caribbean, and Pacific (ACP) countries recently announced their backing for the proposal, prompting their co-sponsors to note that nearly 80 of the WTO's 151 members now support a TRIPS amendment.

Following the typical pattern established for discussions on the issue, the US, Japan, Australia, New Zealand, Canada and Korea said that while they were opposed to bio-piracy, they did not consider a disclosure requirement to be the most efficient way of addressing such concerns.

They added that they were still not convinced about the existence of a conflict between the TRIPS Agreement and the Convention on Biological Diversity (CBD), and thus there was no need for amending the WTO rules. They argued for considering alternative methods for preventing misappropriation of traditional knowledge and genetic material, such as the database system proposed by Japan (IP/C/W/504 and IP/C/W/472). More facts-based discussions on concrete cases of misappropriation are needed, they said.

The EU reiterated that it was prepared to negotiate a disclosure of origin requirement, but it would not support requirements for either prior informed consent or proof of equitable benefit sharing. However, it contended that the World Intellectual Property Organisation (WIPO), rather than the WTO, was the appropriate forum for discussions on disclosure. The EU also argued that failing to accurately provide information on the origin of biodiversity or traditional knowledge used in an invention should not result in patent revocation, in order to avoid endangering the viability of the patent system. Sanctions, it claimed, should instead be sought outside patent law.

The US, for its part, argued that a disclosure requirement would not address resources exported from countries through normal commercial channels that eventually may be used as starting materials for research and or innovation. It added that due to the tenuous relationship between origin and inventorship, it is not likely that the disclosure proposal would prove effective at achieving its stated purpose.

The TRIPS Agreement itself provides for a review of Article 27.3(b), which deals with the patentability of plants and "essentially biological" processes for producing them. The Doha mandate asked WTO Members to broaden this review to look at the relationship between the TRIPS Agreement, the Convention on Biological Diversity, and the protection of traditional knowledge and folklore.

ICTSD reporting.