TRIPS Council Once Again Marked by Divisions Over Disclosure Amendment

19 March 2008

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, Venezuela said that there was high and growing support among the WTO Membership for an amendment of the sort they had proposed (IP/C/W/474) in order to protect biodiversity. 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 the 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 that it would not support requirements for either prior informed consent or proof of equitable benefit sharing. However, it contended that the World Intellectual Property Organization (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.

The TRIPS Council meeting also addressed other issues, such as technical cooperation and capacity-building. The WTO Secretariat urged least-developed countries to submit reports assessing the technical assistance they need to implement the TRIPS Agreement, since only Uganda and Sierra Leone had done so thus far.

Noticeably absent from the meeting's agenda was the enforcement of intellectual property protections, a contentious issue raised regularly by developed countries such as the EU and the US at recent sessions of the council. Developing countries have generally resisted efforts to make enforcement a 'standing issue' on the council's agenda, which would require it to be discussed at each meeting.

The TRIPS Council meeting concluded with the nomination of Ambassador Gail Marie Mathurin (Jamaica) as chair. She succeeds Nigerian Ambassador Yonov Frederick Agah.

ICTSD reporting.

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