TRIPS Council Session Focusses on Biodiversity, Folklore, and Traditional Knowledge
The World Trade Oranization's Council for Trade-related Aspects of Intellectual Property Rights (TRIPS) met on December 1-2, and attempted to move forward on its mandate to consider the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), the protection of traditional knowledge, and folklore. According to BRIDGES Trade BioRes, Vol. 4 No. 22 (December 3, 2004), "while no real advances were made in this session, the debate was characterised by a much more constructive atmosphere than in previous meetings, with countries more willing to discuss substantive issues."
A new proposal (IP/C/W/438) was submitted by Bolivia, Brazil, Cuba, Ecuador, India, Pakistan, Peru, Thailand, and Venezuela with regard to "Prior Informed Consent" (PIC), the second of three elements identified in the "checklist" presented in March 2004 by a number of developing countries (IP/C/W/420) as the basis for future negotiation. It paid particular attention to Article 15 of the Convention on Biological Diversity (CBD), according to which the Contracting Party is obliged to disclose prior informed consent in patents which involve the use of biological resources, unless otherwise determined by the country that provides those resources.
This latest move follows a proposal (IP/C/W/429) made during the last TRIPS Council meeting in September 2004, which focused on the first checklist element, namely disclosure of origin (see BRIDGES Trade BioRes, September 23, 2004, http://www.ictsd.org/biores/04-09-23/story1.htm). That proposal considered ways that disclosure requirements could improve patent examination and prevent "bio-piracy" where traditionally used herbal remedies have been patented by multinationals, with no revenues flowing back to the communities where the genetic material was sourced. The proposal included "a legally binding obligation to disclose the source and country of origin of biological resource and/or traditional knowledge." If non-compliance was discovered after a patent had been granted, the patent could be revoked or the rights could be transferred back to t he original sources. The burden of proof would lie with the patent applicant, and, according to the proposal, the disclosure obligation could be introduced into the TRIPS Agreement through an amendment.
With regard to the third checklist item, disclosure of benefit sharing under the relevant national-level regime, most Members remained unchanged in their positions on this issue. The US maintains its belief that there is no inherent conflict between TRIPS and the CBD, and that mandatory disclosure mechanisms are inappropriate as they are likely to lead to uncertainties in the international patent system. They thus favor a contract-based approach (IP/C/W/434).
In a new proposal, (IP/C/W/433) Switzerland reaffirmed its support for a voluntary patent disclosure system on the source of genetic resources and traditional knowledge. However, it believes that WIPO’s Patent Cooperation Treaty (PCT) would be a more appropriate forum for this than the WTO, and informed the TRIPS Council that it was pursuing the matter in WIPO.
The EU, on the other hand, has suggested that a mandatory system of disclosure would be suitable in principle. However, it has not yet decided on how to best implement this in practice. Similarly, New Zealand and Australia remain more tentative in their approaches towards the issue.
While also remaining undecided on how to best resolve potential conflicts between TRIPS and biodiversity related concerns, Canada intervened to challenge the proponents of the three dominant positions in the Council to examine how 'bad patents' such as neem, turmeric or basmati rice would have been resolved under their respective mandatory, voluntary and contract-based approaches. This challenge was supported by Australia and New Zealand, confirming the demand for assessments of the potential impact of each of the three methodologies on actual cases.
The documents identified above are available here. The next TRIPS Council is scheduled for March 8-10, 2005.
A new proposal (IP/C/W/438) was submitted by Bolivia, Brazil, Cuba, Ecuador, India, Pakistan, Peru, Thailand, and Venezuela with regard to "Prior Informed Consent" (PIC), the second of three elements identified in the "checklist" presented in March 2004 by a number of developing countries (IP/C/W/420) as the basis for future negotiation. It paid particular attention to Article 15 of the Convention on Biological Diversity (CBD), according to which the Contracting Party is obliged to disclose prior informed consent in patents which involve the use of biological resources, unless otherwise determined by the country that provides those resources.
This latest move follows a proposal (IP/C/W/429) made during the last TRIPS Council meeting in September 2004, which focused on the first checklist element, namely disclosure of origin (see BRIDGES Trade BioRes, September 23, 2004, http://www.ictsd.org/biores/04-09-23/story1.htm). That proposal considered ways that disclosure requirements could improve patent examination and prevent "bio-piracy" where traditionally used herbal remedies have been patented by multinationals, with no revenues flowing back to the communities where the genetic material was sourced. The proposal included "a legally binding obligation to disclose the source and country of origin of biological resource and/or traditional knowledge." If non-compliance was discovered after a patent had been granted, the patent could be revoked or the rights could be transferred back to t he original sources. The burden of proof would lie with the patent applicant, and, according to the proposal, the disclosure obligation could be introduced into the TRIPS Agreement through an amendment.
With regard to the third checklist item, disclosure of benefit sharing under the relevant national-level regime, most Members remained unchanged in their positions on this issue. The US maintains its belief that there is no inherent conflict between TRIPS and the CBD, and that mandatory disclosure mechanisms are inappropriate as they are likely to lead to uncertainties in the international patent system. They thus favor a contract-based approach (IP/C/W/434).
In a new proposal, (IP/C/W/433) Switzerland reaffirmed its support for a voluntary patent disclosure system on the source of genetic resources and traditional knowledge. However, it believes that WIPO’s Patent Cooperation Treaty (PCT) would be a more appropriate forum for this than the WTO, and informed the TRIPS Council that it was pursuing the matter in WIPO.
The EU, on the other hand, has suggested that a mandatory system of disclosure would be suitable in principle. However, it has not yet decided on how to best implement this in practice. Similarly, New Zealand and Australia remain more tentative in their approaches towards the issue.
While also remaining undecided on how to best resolve potential conflicts between TRIPS and biodiversity related concerns, Canada intervened to challenge the proponents of the three dominant positions in the Council to examine how 'bad patents' such as neem, turmeric or basmati rice would have been resolved under their respective mandatory, voluntary and contract-based approaches. This challenge was supported by Australia and New Zealand, confirming the demand for assessments of the potential impact of each of the three methodologies on actual cases.
The documents identified above are available here. The next TRIPS Council is scheduled for March 8-10, 2005.
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