Positions remain unchanged in TRIPS/CBD consultations

An informal consultation held on 6 June at the WTO on the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD) ended with positions among members remaining unchanged on the issue of disclosure of the source of origin of biological resources and associated traditional knowledge.

The meeting discussed a paper by Brazil, India, Pakistan, Peru, Thailand and Tanzania (WT/GC/W/564, circulated on 31 May) containing the text of a proposed amendment to the TRIPS Agreement to make the disclosure of the source of origin of biological resources and traditional knowledge mandatory for patent applicants.

China and Cuba have joined the list of sponsors of this proposal, and a revised document (WT/GC/W/564/Rev. 1) will be available shortly.

According to trade officials, the sponsors of the proposal argued that the debate has matured sufficiently, and negotiations based on a text are now required in order to comply with the Hong Kong Ministerial Declaration's call for "any appropriate action" to be taken by the end of July.

On the other hand, the US, Australia and others said that negotiation based on any text is premature, as there were differences in views.

The informal consultation (under the implementation issues mandate) was chaired by WTO Deputy Director-General Rufus Yerxa, acting as a 'friend of the Director-General'. The Director-General Pascal Lamy was mandated by Ministers in Hong Kong to intensify consultations on this issue (among other implementation issues).

The Hong Kong Ministerial Declaration says: "The Director-General shall report to each regular meeting of the TNC and the General Council. The Council shall review progress and take any appropriate action no later than
31 July 2006."

A separate discussion on TRIPS Article 27.3(b), the CBD and traditional knowledge is taking place in the TRIPS Council.

The paper by Brazil, India, Pakistan, Peru, Thailand and Tanzania proposes the introduction of text into the TRIPS Agreement through a new ''Article 29bis'' titled ''Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge'' (see SUNS #6039 dated 2 June 2006).

The proposed text of the amendment to the TRIPS Agreement contains five paragraphs that propose that countries' patent regimes should require patent applicants to disclose the country of origin of biological resources and/or traditional knowledge used in the invention and to disclose any new information that comes to light subsequently. It also requires member governments to publish the disclosed information, and for members to enforce these provisions.

According to trade officials, Brazil, India, Peru, Ecuador, China, Thailand, Pakistan and Colombia (which said that it is considering becoming a co-sponsor) said that there is clearly a mandate to negotiate a text following extensive discussion and fact-finding. They also said that avoiding the misappropriation of biological resources and traditional knowledge is a major interest of developing countries in the Doha Development Agenda.

Norway expressed some support but said that it will submit an alternative proposal that does not go as "far" as this one.

The US, Korea, Japan, Australia, New Zealand, Canada, Chinese Taipei and Singapore however said that there is no mandate to negotiate a text, and that it is more appropriate to continue discussions based on facts in order to sort out the issues. They reiterated that actual cases show that "disclosure" would not solve the problem of misappropriation and that "bad patenting" has been handled appropriately under existing systems.

Argentina and Venezuela said that they are still holding consultations domestically and will respond later.

The EU (which advocates disclosure through a method that is outside patent law) raised a number of technical questions.

Switzerland (which prefers disclosure through WIPO's Patent Cooperation Treaty) said that its own priority is geographical indications (the "extension" of the higher level of protection beyond wines and spirits to all products). It would be difficult for Switzerland to negotiate a text on "disclosure" without a serious discussion on geographical indications "extension", it added.

The Chair said that he would hold another consultation on 13 June.