[A2k] SUNS: TRIPS/CBD, ENFORCEMENT DOMINATE TALKS AT TRIPS COUNCIL

[Sangeeta]

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SUNS #6191 THURSDAY 15 FEBRUARY 2007

TRIPS/CBD, ENFORCEMENT DOMINATE TALKS AT TRIPS COUNCIL

Geneva, 14 Feb (Kanaga Raja) -- The relationship between the TRIPS Agreement
and the Convention on Biological Diversity and the issue of enforcement of
TRIPS provisions dominated the discussions at a meeting of the TRIPS Council
on Tuesday.

On the TRIPS/CBD relationship, a group of developing countries and Norway
reiterated their call for the TRIPS Agreement to be amended so that patent
applicants are required to disclose the origin of genetic material and
traditional knowledge. However, several other countries were of the view
that negotiations to amend the TRIPS Agreement were premature.

The issue of the enforcement of TRIPS provisions was included on the agenda
at the request of the US which presented a paper on its experience on border
enforcement.

According to trade officials, China, supported by several developing
countries, however stressed that this issue could not be a permanent agenda
item. They argued that the TRIPS Agreement gives countries the right to
choose how to implement and enforce its provisions.

On the other hand, some developed countries supported continuing an exchange
of information on this issue.

On the relationship between the TRIPS Agreement and the CBD, a group of
countries that include Brazil, Ecuador, China, India, Cuba, Thailand, Kenya,
Pakistan, Norway, Venezuela, Colombia and Turkey repeated their call for the
TRIPS Agreement to be amended so that patent applicants are required to
disclose the origin of genetic material and traditional knowledge and show
that they have complied with the host country's requirements on obtaining
consent and sharing benefits.

(One proposal for an amendment is in document IP/C/W/474, whose sponsors are
Brazil, China, Colombia, Cuba, Ecuador, India, Pakistan, Peru, South Africa,
Thailand and Tanzania. Another is from Norway in document IP/W/473.)

However, the US, Korea, Canada, Australia and New Zealand argued that
negotiation to amend the TRIPS Agreement is premature and not the
appropriate way to deal with bio-piracy.

According to trade officials, the EU said that the issue is best discussed
in the World Intellectual Property Organization (WIPO). Some countries such
as Canada and New Zealand said that they are still discussing the issue
domestically.

Some countries were satisfied to focus on technical aspects in these TRIPS
Council discussions, leaving to separate consultations under Deputy
Director-General Rufus Yerxa the question of whether or not to negotiate,
and whether or not to amend the TRIPS Agreement.

Norway replied to Switzerland's questions on its proposal. The questions
were in relation to the implications for international and regional
agreements, the meaning of "supplier" country, country of "origin" and
"holders" for genetic material and traditional knowledge, and what would
happen if applicants did not know the origin or holders.

Norway clarified these issues and said that applicants would not be
penalized if they did not know, but if they refused to supply the
information, the patents would not be registered.

Later at the meeting, Brazil expressed its regrets that members still cannot
agree on additional observers for the TRIPS Council, particularly the
Secretariat of the Convention on Biological Diversity.

The US presented a paper on its experience with border enforcement
(IP/C/W/488).

The US said that its paper discusses recent data on the growing scale of IPR
infringement detected in the United States, as measured by seizures of
infringing imported goods by US customs authorities.

The paper said that the value of infringing goods seized by the US Customs
and Border Protection (CBP) in Fiscal Year 2006 reached $155.4 million, and
the number of seizures reached 14,675. The Fiscal Year 2006 value and number
of seizures are the highest in the history of CBP. This represents an
increase of two-thirds by value, and 83% in the number of seizures, compared
to the previous fiscal year.

It also said that footwear accounted for a significant proportion of goods
seized in Fiscal Year 2006, at 41% of total value. This was a major increase
over the previous year, when footwear accounted for only 10% of total
seizures, by value.

Wearing apparel, handbags, computers, and consumer electronics (including
power strips, DVD players, and cell phones) also figured prominently in the
seizures made by CBP during the past fiscal year. Consumer electronics
seizures represent a particular concern as these fake products may pose
health and safety risks, the US maintained.

The US paper also outlined methods used by US customs authorities to use
"risk modelling methods" (which look at variables to calculate the risk that
a shipment contains counterfeit products), and "post-entry verification
audits" (which identifies and penalizes importers after counterfeit goods
are sold).

According to trade officials, China led a number of countries in expressing
their discomfort, even before the agenda was adopted. They stressed that
they were not blocking the agenda, but said that this could not be a
permanent agenda item.

They stressed that the TRIPS Agreement gives countries the right to choose
how to implement and enforce its provisions, and that enforcement cannot be
considered separately from other provisions, including those on
non-discrimination and on avoiding creating unnecessary barriers to trade.

They also argued against duplicating work in the World Customs Organization
and World Intellectual Property Organization.

A number of countries supported China, either before the agenda was adopted
or during the discussion. These were India, Argentina, Cuba, South Africa
and Brazil.

On the other hand, Canada, El Salvador, New Zealand, Australia, the EU,
Japan and Switzerland supported more exchange of information.

As to other issues, the least-developed countries (Bangladesh speaking)
asked the Secretariat to help identify the technical assistance needs under
their extended transition period.

Also, five countries have now accepted the amendment of the TRIPS Agreement
(on compulsory licensing of pharmaceutical patents for export to countries
unable to make the products).

The Chair urged other countries to follow in order to meet the year-end
deadline.

At the end of the meeting, Chairperson Ambassador Trevor Clarke of Barbados
handed over the Chairmanship to Ambassador Yonov Frederick Agah of Nigeria.




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