TRIPS COUNCIL DISCUSSES BIODIVERSITY, HEALTH IN INFORMAL MODE

At the 8 March meeting of the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs), the outgoing Chair -- Ambassador Vanu Gopala Menon of Singapore -- reported on the outcomes of informal consultations on how to convert the 30 August 2003 Decision on paragraph 6 of the Doha Declaration (on access to generic medicines) into an amendment of the TRIPs Agreement. Members remained divided over the content and legal form of the amendment and the timing of its finalisation. The Council also discussed a new submission by a group of developing countries, represented by India, proposing a checklist for how to move forward on biodiversity-related discussions.

Last August's Decision on TRIPs and Public Health, together with a clarifying statement by the TRIPs Council Chair (see BRIDGES Weekly, 4 September 2003), spell out the conditions under which countries without pharmaceutical manufacturing capacity can import generic versions of drugs still under patent. Paragraph 11 of the Decision instructs the TRIPs Council to initiate work by the end of 2003 on an amendment to the TRIPs Agreement to replace the provisions of the waiver contained in the Decision. The amendment should be adopted by the end of June 2004.

Health discussions remain at informal level

Since the last meeting of the TRIPs Council in November 2003, the Chair has been conducting informal consultations on turning the waiver into a more permanent amendment. The US and the EC generally favour a rapid conclusion of the talks by the June 2004 deadline. In contrast, developing countries are taking a more cautious approach, hoping that the 30 August deal can be "improved" based on the experiences gained with its implementation. One option floated in the consultations was a delay of nine months, which would correspond to the delay on the original decision.

Regarding the content and legal form of the amendment, the US is advocating the inclusion of a simple footnote in the TRIPs Agreement referring to the 30 August Decision and the accompanying Chair's statement. While not entirely rejecting the idea of a footnote, the EC would prefer an amendment to Article 31 (other use without authorisation of the right holder) of the TRIPs Agreement. It remained unclear what the legal implications of such a footnote would be and in particular how it would affect the legal status of the Chair's statement. The Secretariat's legal division said it would consider this question while stressing that it was up to Members to clarify the issue.

Members did not discuss the amendment further in the TRIPs Council, and the new Chair Joshua Law of Hong Kong will continue to hold informal consultations.

Renewed calls for moving ahead on biodiversity

A group of developing countries, including Bolivia, Brazil, Cuba, Ecuador, India, Peru, Thailand, Venezuela and Pakistan, renewed their efforts to speed up discussions on resolving potential conflicts between the TRIPs Agreement and the Convention on Biological Diversity (CBD). To focus the discussions, their submission (IP/C/W/420, available at http://docsonline.wto.org) puts forward a checklist of three issues raised in previous proposals (see BRIDGES Weekly, 26 November 2003), namely disclosure of origin and evidence of prior informed consent and benefit-sharing related to genetic material and traditional knowledge (TK).

While the EC did not necessarily agree with all three points, such as evidence of prior informed consent, it was willing to pursue the discussions along those lines. It also stressed that in order to avoid duplication, the TRIPs Council's work on TK should await the outcomes of the WIPO Intergovernmental Commission on Intellectual Property Rights and Genetic Resources, Traditional Knowledge and Folklore. Switzerland and Norway also signalled their openness to discussions. In contrast, the US opposed the checklist, arguing that there was no conflict between the TRIPs Agreement and the CBD and that the CBD should not be enforced through patent law. The US, along with Japan, called for the discussions to take place in WIPO. In response, the India-led group, supported by other developing countries, insisted that discussions should continue in the TRIPs Council pursuant to the mandate set out in para. 19 of the Doha Declaration.

Also at the meeting, the EC responded to an earlier submission by the African Group on the review of Article 27.3(b) (patentability of life forms) of the TRIPS Agreement (IP/C/W/404, see BRIDGES Weekly, 12 June 2003). In general, the EC supported the submission's suggested approach to identify and focus on areas where agreement could be reached. However, the EC noted that the African Group's call for a ban on patenting of life was likely to be opposed by countries with biotechnology industries. Moreover, the EC thought the African proposal to provide indefinite protection for TK was "rather unacceptable", given that so far only names (i.e. trademarks and geographical indications) received lifelong protection while patents were subject to a 20-year time limit.

The special session on the multilateral register for wines and spirits will be held on 7 April. The next TRIPs Council is currently scheduled for 15-17 June. The Chair will hold informal consultations on health and biodiversity in the meantime.

The WIPO Intergovernmental Committee is meeting from 15-19 March in Geneva.

For an account of related discussions at the last meeting of the CBD in Kuala Lumpur (9-20 February), see BRIDGES Trade BioRes, 20 February 2004.

ICTSD reporting; "WTO divided on how to incorporate medicines agreement into TRIPs accord," WTO REPORTER, 10 March 2004; "Developing Countries call for focus on bio-piracy in TRIPs/biodiversity talks," WTO REPORTER, 4 March 2004.