Brief on Doha Intellectual property Issues23/11/2010
"TRIPS” is “trade-related aspects of intellectual property rights”. One group of countries asked for three intellectual property issues to be part of the agenda for the July 2008 meeting of a group of ministers , and to link them with agriculture and NAMA modalities. Another group opposes both the linking and the assertion that the subjects are ready for negotiations based on draft texts.
Only one of these subjects is officially part of the Doha round of negotiations and accepted as part of the “single undertaking” in which all Doha round subjects form part of a single package, with “nothing agreed until everything is agreed”:
- the negotiation to create a multilateral register for geographical indications for wines and spirits.
The other two subjects are officially “implementation” issues. Members differ over whether these are subjects for negotiation or not:
- “ GI extension ”: a proposal to extend to other products the higher level of geographical indications protection now given to wines and spirits
- “ disclosure ”: requiring that patent applicants disclose the origin of genetic material and traditional knowledge used in their inventions, or alternative proposals. This comes under the “ relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD) ”.
Although the three issues are not officially linked, in July 2008 one group of over 100 WTO members called for a “procedural decision” to negotiate them in parallel (see document TN/C/W/52 of 19 July 2008 ).
Although positions remain largely unchanged, this development has produced two results. On the one hand, opponents argue that the three topics should not be linked and particularly that the only mandate is to negotiate the multilateral register. At the same time, reaching agreement among over 100 members required some compromises and the original EU proposal on the multilateral register has been modified to make it acceptable to the large number of delegations in that group.
Geographical indications are place names (in some countries also words associated with a place) used to identify products that come from these places and have specific characteristics (for example, “Champagne”, “Tequila” or “Roquefort”). Under the TRIPS Agreement , all geographical indications have to be protected at least to avoid misleading the public and to prevent unfair competition (Art.22). Wines and spirits are given a higher or enhanced level of protection (Art.23): subject to a number of exceptions (Art.24), they have to be protected even if misuse would not cause the public to be misled.
1. Negotiation: the multilateral register for wines and spirits
This negotiation takes place in dedicated “special sessions” of the TRIPS Council. It is about creating a multilateral system for notifying and registering geographical indications for wines and spirits, which today benefit from a level of protection that is higher than for other geographical indications. The multilateral register is discussed separately from the question of “extension” — extending the higher level of protection to other products — although some countries consider the two to be related.
The work began in 1997 under Article 23.4 of the TRIPS Agreement . In 2001 it was brought into the Doha Development Agenda (the Doha Declaration's paragraph 18).
2. Implementation: geographical indications ‘extension’
The issue here is whether to expand the higher level of protection ( Article 23 ) to other products. A number of countries want to negotiate extending this higher level of protection to other products (i.e., cheeses, ceramics, meat, tea, coffee, etc.). Some others oppose the move, and the debate has included the question of whether the Doha Declaration provides a mandate for negotiations.
The subject is an “implementation” issue in the Doha Development Agenda (the Doha Declaration’s paragraphs 12 and 18). The latest mandate is paragraph 39 of the 2005 Hong Kong Ministerial Declaration . Director-General Pascal Lamy is mandated to consult the parties on a course of action. For a time, Deputy Director-General Rufus Yerxa chaired those consultations on his behalf, but more recently Mr Lamy has chaired the talks himself.
Patents, biodiversity and ‘disclosure’: implementation
This debate was originally wide-ranging. It now focuses on how the TRIPS Agreement relates to the Convention on Biological Diversity, and particularly whether the agreement should be amended to require “disclosure”. The ideas put forward include:
Disclosure as a TRIPS obligation : A group represented by Brazil and India and including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand, and supported by the African group and some other developing countries, wants to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions, evidence that they received “prior informed consent” (a term used in the Biological Diversity Convention), and evidence of “fair and equitable” benefit sharing.
Disclosure through the World Intellectual Property Organization (WIPO) : Switzerland has proposed an amendment to the regulations of the WIPO's Patent Cooperation Treaty (and, by reference, WIPO's Patent Law Treaty) so that domestic laws may ask inventors to disclose the source of genetic resources and traditional knowledge when they apply for patents. Failure to meet the requirement could hold up a patent being granted or, when done with fraudulent intent, could entail a granted patent being invalidated.
Disclosure, but outside patent law : The EU's position includes a proposal to examine a requirement that all patent applicants disclose the source or origin of genetic material, with legal consequences of not meeting this requirement lying outside the scope of patent law.
Use of national legislation, including contracts rather than a disclosure obligation : The United States has argued that the Convention on Biological Diversity's objectives on access to genetic resources, and on benefit sharing, could best be achieved through national legislation and contractual arrangements based on the legislation, which could include commitments on disclosing of any commercial application of genetic resources or traditional knowledge.
Like “GI extension”, this is an “implementation” issue in the Doha Development Agenda (the Doha Declaration’s paragraphs 12 and 18 ). Again, the latest mandate is paragraph 39 of the 2005 Hong Kong Ministerial Declaration . For a time, Deputy Director-General Rufus Yerxa chaired those consultations on behalf of Director-General Pascal Lamy , but more recently Mr Lamy has chaired the talks himself.
Documents available to ministers and the trade negotiations committee
One was by Ambassador Manzoor Ahmad, chairperson of the negotiations on creating a system for registering geographical indications for wines and spirits. The other is from Director-General Pascal Lamy on his consultations — at that time chaired by Deputy Director-General Rufus Yerxa on his behalf — on whether to extend enhanced protection for geographical indications beyond wines and spirits, and on patents and biodiversity.
Both reports are factual accounts of the latest state of the discussions. They do not propose how members might compromise. They say members’ opinions differ on whether these three subjects should be part of the “horizontal process” and whether they should be linked. Discussions have continued since then, but positions remain largely unchanged.