[A2k] SUNS: Majority of WTO members now support disclosure proposal

[Sangeeta]

Majority of WTO members now support disclosure proposal
Published in SUNS #6436 dated 17 March 2008

Martin Khor, Geneva, 14 March 2008

A majority of WTO members are now supporting the proposal to amend the WTO's
TRIPS agreement so as to include a disclosure requirement for patent
applications relating to genetic resources and traditional knowledge.

The ACP Group is the latest to have formally indicated (in a notice of 22
January) that their members are joining the list of co-sponsors of the
proposal (WT/GC/W/564/Rev. 2) that was originally made by India, Brazil,
Peru and other countries.

Last year, the Africa Group and the LDC Group also officially informed the
Council that they were co-sponsoring the proposal.

Developing-country diplomatic sources said that there are now almost 80
countries that are officially supporting the disclosure proposal.

The main advocates of the disclosure proposal (including India and Brazil)
reiterated their position at a regular TRIPS Council meeting at the WTO on
Thursday (13 March).

They also maintained that the issue should be included in the expected
forthcoming negotiations in the "horizontal process", which is the next
stage of the Doha Round.

In this horizontal process, agriculture and NAMA are to be negotiated
together; and some members are also advocating that services and rules be
discussed within or alongside this process; while the EU is advocating that
geographical indications be also included, and India (supported by some
developing countries) also want the disclosure issue to figure in this
process.

WTO members believe that the best hope for their issue to be seriously
considered for a decision is to be part of the package in the horizontal
process.

India asked that the discussion on this issue should now move to a
text-based negotiation. The developing countries have already submitted a
draft of such a text.

However, developed countries at the TRIPS Council meeting also maintained
their position, which is to oppose an amendment to the TRIPS Agreement,
which they said would not solve the problems.

The developing-country proposal is for an amendment to the TRIPS Agreement
so that it would be mandatory for countries to have in their national patent
laws a requirement for patent applicants to disclose the countries of origin
of biological materials and traditional knowledge used in their inventions,
as well as evidence of prior informed consent and benefit sharing
arrangements with the countries of origin and relevant local communities.

The disclosure proposal was discussed under the agenda items of the review
of Article 27.3 (b) of TRIPS, the relation between the TRIPS agreement and
the Convention on Biological Diversity, and the protection of traditional
knowledge and folklore. It is also being negotiated under the
"implementation issues" of the Doha negotiations.

Among the advocates, India made the most detailed statement. It said that
the Doha Round is a Development Round and its results would not be complete
if it fell short of correcting the imbalance in the TRIPS agreement caused
by its failure to protect genetic resources and traditional knowledge. For
India, an outcome on this issue is an essential element of any "development
package" that emerges from the Round.

"The growing support base for the proposal, including co-sponsorship by the
African Group, the LDC Group and the ACP Group has taken the co-sponsoring
countries beyond the majority membership mark," said India. These are
sufficient indications that text-based negotiations on the basis of the
submission made in IP/C/W/474 must begin soon.

In this context, said India, the proponents of the Disclosure Proposal have
already submitted a text proposal on TRIPS and CBD for inclusion in the
horizontal modalities decision. The work in the TRIPS Council should
complement the work on this issue in the negotiating process.

India added that Doha Mandate provides that negotiations on outstanding
implementation issues shall be an integral part of the Work Programme. The
relationship between the TRIPS Agreement and CBD is a critical
implementation issue for developing countries. The objectives of the
Disclosure Proposal (IP/C/W/474), of which India is a key proponent, are
shared by all Members.

India stressed that there is general agreement among members on preventing
bio-piracy, erroneously granted patents and enhancing mutual supportiveness
between the TRIPS Agreement and the CBD.

The Disclosure Proposal seeks to meet these objectives through amendment of
the TRIPS Agreement to include mandatory disclosure requirements, prior
informed consent and access and benefit sharing, thus meeting the three core
concerns of the CBD. This would also make the patent system transparent and
credible, said India. Obviously, to be effective, it calls for legal
consequences for non-compliance.

Added India: "The failure of the TRIPS Agreement to extend protection to
genetic resources and traditional knowledge, which developing country
Members enjoy in abundance, is one of the factors leading to an imbalance in
the TRIPS Agreement and in the multilateral trading system as a whole.

"Under the TRIPS Agreement, countries have no obligation to examine whether
there is misappropriation of genetic resources and traditional knowledge in
patent applications. Misappropriation of genetic resources and traditional
knowledge and bio-piracy are issues with an international dimension and
therefore need international obligations to be addressed in a satisfactory
way.

"While national access and benefit sharing systems and databases on genetic
resources can help, to some extent, in preventing bio-piracy, they are far
from solving the problem."

India said the two submissions made by Peru in previous meetings highlight
some of the main problems faced by mega-diverse countries -- trans-boundary
use of genetic resources, bio-piracy and erroneously granted patents.
Without adequate and effective protection of genetic resources and TK at the
international level, the problem will continue.

India also expressed appreciation of the proposals made by some developed
countries which come very close to the Disclosure Proposal.

According to trade officials, Japan, South Korea, the US, Australia, New
Zealand and others continued to argue that amending the TRIPS Agreement
would not solve the problems of bio-piracy and erroneous patenting.

Another issue discussed at the meeting was technical assistance.

Sierra Leone and Uganda identified priority needs to assist them to meet the
obligations they will face when they apply the TRIPS Agreement. It was
agreed that this will be discussed in greater depth in consultations in the
same week as the next Council meeting, in June.

The two countries face the new deadline for LDCs to implement TRIPS by 1
July 2013, under a decision in 2005 to extend the TRIPS implementation
deadline for LDCs.

The meeting also heard Vietnam (which joined the WTO in January 2007)
explaining its intellectual property laws under the "review of legislation",
which all members applying the TRIPS Agreement have to go through. Members
will submit questions, which Vietnam will reply to in the next meeting.

The meeting also saw continued disagreement on whether the Secretariat of
the Convention on Biological Diversity should be an observer in the Council,
even if invited ad hoc meeting-by-meeting. The chairperson said there was
flexibility from one member previously opposing this, but continued
objection from another.

At the end of the meeting, the Chair of the Council, Ambassador Yonov Agah
of Nigeria, handed the chairmanship over to Ambassador Gail Marie Mathurin
of Jamaica.

The next meetings of the Council will be on 17-18 June and 28-29 October. +