PHA-Exchange> Officials Make Incremental Progress In TRIPS Talks

[Claudio]

From: "Vern Weitzel" <vern.weitzel at undp.org>
http://www.ip-watch.org/weblog/index.php?p=29&res=1280_ff&print=0

Officials Make Incremental Progress In TRIPS Talks
Filed under:
     * Biodiversity
     * Health
     * Traditional Knowledge
     * Trade

Officials negotiating to implement and update a 10-year-old agreement on
intellectual property
rights at the World Trade Organisation made a little progress toward that
goal last week, according
to official sources in Geneva.

While small gains on the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights
(TRIPS) are hard-fought, the outcome of several days of meetings of the
TRIPS Council “provides some
comfort to those who want progress,” a WTO official said afterward.

TRIPS and Public Health
On the TRIPS and Public Health agenda, the WTO official said there was a
“slight sign of
flexibility” on how to handle a long-standing disagreement over amending a
TRIPS provision limiting
the ability of countries unable to produce their own generic medicines to
import patented drugs
produced under compulsory license.

This is sometimes referred to as the “paragraph 6” issue because it falls
under that paragraph of
the 2001 Doha Declaration on TRIPS and Public Health, which overall aimed to
ensure the TRIPS
agreement does not prevent nations from acting in their public interest.

TRIPS Article 31(f) requires that products made under compulsory license
must be “predominantly” for
the domestic market, which limits the ability to export them. Paragraph 6
mandated that members
address the possible negative impact of that requirement on countries
needing to import products. In
August 2003, WTO members agreed on a waiver for countries from the
requirement until an amendment is
agreed upon.

The TRIPS Council has set a deadline of the end of March to make some form
of the waiver a permanent
amendment. But last week the chair suspended the meeting to continue
consultations with an eye
toward resolution by the March 31 deadline.

During the Tuesday and Wednesday meetings in Geneva, debate focused on
whether a proposed amendment
by the African Group (African WTO members) would alter the substance of the
August 2003 waiver.
Agreement was not reached.

The African Group presented a paper making legal arguments in support of
their earlier draft
amendment of TRIPS Article 31, a WTO official said. In procedural wrangling,
the group along with
Brazil and South Korea, said a statement read out by the General Council
chairperson at the time of
the waiver’s adoption in 2003 should not be included in the amendment, even
as a footnote, because
it would give it legal status. Instead, the group proposed that a statement
could be read out at the
time of the amendment’s adoption.

The statement refers to several countries previously volunteered to use the
waiver system only for
emergencies or extremely urgent situations. They are: Hong Kong China,
Israel, Korea, Kuwait, Macao
China, Mexico, Qatar, Singapore, Taiwan, Turkey and United Arab Emirates.
Concern has been raised
about making their voluntary status legally binding by including the
statement, sources said.

Switzerland argued that the statement must be included, but the United
States, which previously
proposed a footnote in the amended provision, now indicated it is open to
other possibilities, the
official said.

Separately in the meeting, the United States stated that the terms of its
bilateral free trade
agreements do not prohibit countries from using the TRIPS and Public Health
solution effectively,
the official said.

Biodiversity, Traditional Knowledge and Folklore
Another issue addressed in the meetings was the ongoing review of TRIPS
Article 27.3(b), which
covers the patentability of plant and animal inventions and the protection
of plant varieties. The
Doha Declaration calls for reviews of the relationship between TRIPS and the
UN Convention on
Biodiversity, the protection of traditional knowledge and folklore, and
other issues raised by
governments in the review of TRIPS.

WTO Director-General Supachai Panitchpakdi has asked several chairpersons to
conduct consultations
and report in May to the Trade Negotiations Committee, which guides the
overall round of
negotiations at the WTO. The General Council is to take an action in July.

According to a WTO official, during last week’s meeting a number of
developing countries stressed
the importance of consultations on the ties between remaining TRIPS
implementation issues and the
biodiversity convention. An example is the disclosure of origins of genetic
material or traditional
knowledge in patent applications. Canada, Japan and Korea called for this to
be discussed at the
World Intellectual Property Organisation, a proposal Brazil, India, Peru and
others objected to as
“forum shopping.” The European Union and United States generally opposed
changes related to TRIPS
and the biodiversity convention.

The chair initiated consultations, which has the effect of bringing this
group of subjects more
closely within the Doha Development Agenda, the WTO official said.

Also at the meeting, three new papers were tabled kindling intensified
discussions, the official
said. Peru reported on its experience fighting biopiracy using case studies,
and stressed the need
for concrete solutions to the problem of misappropriated genetic resources
and biopiracy. It argued
that the lack of obligation to state the origin of resources in a patent is
a priority
implementation issue to be addressed in the Doha Development Agenda.

Brazil, India and others offered a paper on the obligation to disclose
evidence of benefit sharing.
And Brazil and India responded to a November 2004 paper from the United
States. Several developing
countries, including China, supported the papers, while Australia, Canada,
Japan and the United
States remained opposed to amending TRIPS relative to the biodiversity
convention. Japan repeated
its view that disclosure of genetic resources should be discussed at the
World Intellectual Property
Organisation, the official said.

Geographic Indications
The issue of geographic indications for wines and spirits (such as reserving
the term “champagne”
for products from Champagne, in France) appears stalled. In a special
session on Friday there was no
movement on either side of issue despite a lengthy debate on a new draft
decision circulated by
Canada, Chile and others, a WTO official said. The meeting ended with
disagreement over which
document should provide the basis for future negotiations. The European
Union and Switzerland backed
a draft text prepared by the chairperson on 16 April 2003, while the new
draft has 12 supporters,
including Australia, Mexico, Taiwan and the United States.

The new proposal, which draws on previous submissions, loosely defines the
notification and
registration system as voluntary and with limited obligations for countries,
whereas the European
Union and Switzerland want all WTO members to protect the registered terms
and be subject to
obligations.

There also was little progress in separate Thursday consultations led by WTO
Deputy Director-General
Francisco Thompson-Flores on extending the high level of protections given
to wines and spirits to
other products, sources said. Bulgaria, the European Union, and Switzerland
are pushing for the
extension, but were opposed by Australia, Canada, Chile, the United States
and others. The issue is
expected to come up again in April.

Remaining meetings of the TRIPS Council in 2005 are tentatively scheduled
for 14-15 June and 25-26
October.

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Intellectual Property Watch are also subject to a Creative Commons License
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William New, the author of this post, may be reached at wnew at ip-watch.org.