Developing countries set for clash with US over patents
6 June, 2006
Frances Williams in Geneva
India, Brazil, Tanzania, Thailand, Peru and Pakistan last week proposed an amendment to the WTO's intellectual property agreement that would make such disclosure a condition of receiving the patent. In the event of failure to comply, existing patents would be revoked or made unenforceable.
The sponsors say their proposal is needed to stop 'bio-piracy' - the exploitation of their genetic resources for drug development without a fair return to the host communities. But the pharmaceutical industry says existing rules are adequate and claims that draconian penalties for non-disclosure would stifle interest in developing new biomedicines.
The proposal, which is expected to attract support from more of the WTO's poorer members in coming weeks, has been made as part of the Doha global trade round. It may be used as a bargaining chip to set against the demands of rich countries for concessions elsewhere in the negotiations.
The WTO has set a deadline of end-July to make progress on this and a European Union demand for the extension of rules protecting geographical names for products other than wines and spirits.
However, Rufus Yerxa, WTO deputy director-general, who is in charge of consultations on these issues, said last month he did not expect agreement by the deadline. The US is reportedly backed by Japan, Australia, South Korea, New Zealand and Canada.
The EU has taken a softer line, favouring disclosure but opposing the invalidation of patents if disclosure requirements are breached. Trade experts see this as a move to recruit developing country support on geographical names, where Brussels faces strong opposition from the US and the same group of allies as well as much of Latin America.
The proposed amendment would require patent applicants to disclose both the country from which the resource was obtained and the country of origin of the resource. They would also have to show that they had complied with national laws on 'prior informed consent' for access to the resource and on equitable benefit- sharing from its commercial development.
'Prior informed consent' and equitable benefit-sharing are required by the United Nations convention on biological diversity, but the convention leaves it to member countries to decide whether and how to put these concepts into national law. The US, as a non-signatory, is not bound by the convention.
Pharmaceutical companies say they already obey national laws, which normally require a contract with the government, and that only a handful of bio-piracy cases have been identified. But India and Brazil argue that without international rules, national laws can be easily evaded.
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