TRIPS/CBD, enforcement dominate talks at TRIPS Council

The relationship between the TRIPS Agreement and the Convention on Biological Diversity and the issue of enforcement of TRIPS provisions dominated the discussions at a meeting of the TRIPS Council on Tuesday 13 February.

On the TRIPS/CBD relationship, a group of developing countries and Norway reiterated their call for the TRIPS Agreement to be amended so that patent applicants are required to disclose the origin of genetic material and traditional knowledge. However, several other countries were of the view that negotiations to amend the TRIPS Agreement were premature.

The issue of the enforcement of TRIPS provisions was included on the agenda at the request of the US which presented a paper on its experience on border enforcement.

According to trade officials, China, supported by several developing countries, however stressed that this issue could not be a permanent agenda item. They argued that the TRIPS Agreement gives countries the right to choose how to implement and enforce its provisions.

On the other hand, some developed countries supported continuing an exchange of information on this issue.

On the relationship between the TRIPS Agreement and the CBD, a group of countries that include Brazil, Ecuador, China, India, Cuba, Thailand, Kenya, Pakistan, Norway, Venezuela, Colombia and Turkey repeated their call for the TRIPS Agreement to be amended so that patent applicants are required to disclose the origin of genetic material and traditional knowledge and show that they have complied with the host country's requirements on obtaining consent and sharing benefits.

(One proposal for an amendment is in document IP/C/W/474, whose sponsors are Brazil, China, Colombia, Cuba, Ecuador, India, Pakistan, Peru, South Africa, Thailand and Tanzania. Another is from Norway in document IP/W/473.)

However, the US, Korea, Canada, Australia and New Zealand argued that negotiation to amend the TRIPS Agreement is premature and not the appropriate way to deal with bio- piracy.

According to trade officials, the EU said that the issue is best discussed in the World Intellectual Property Organization (WIPO). Some countries such as Canada and New Zealand said that they are still discussing the issue domestically.

Some countries were satisfied to focus on technical aspects in these TRIPS Council discussions, leaving to separate consultations under Deputy Director-General Rufus Yerxa the question of whether or not to negotiate, and whether or not to amend the TRIPS Agreement.

Norway replied to Switzerland's questions on its proposal. The questions were in relation to the implications for international and regional agreements, the meaning of "supplier" country, country of "origin" and "holders" for genetic material and traditional knowledge, and what would happen if applicants did not know the origin or holders.

Norway clarified these issues and said that applicants would not be penalized if they did not know, but if they refused to supply the information, the patents would not be registered.

Later at the meeting, Brazil expressed its regrets that members still cannot agree on additional observers for the TRIPS Council, particularly the Secretariat of the Convention on Biological Diversity.

The US presented a paper on its experience with border enforcement (IP/C/W/488).

The US said that its paper discusses recent data on the growing scale of IPR infringement detected in the United States, as measured by seizures of infringing imported goods by US customs authorities.

The paper said that the value of infringing goods seized by the US Customs and Border Protection (CBP) in Fiscal Year 2006 reached $155.4 million, and the number of seizures reached 14,675. The Fiscal Year 2006 value and number of seizures are the highest in the history of CBP. This represents an increase of two-thirds by value, and 83% in the number of seizures, compared to the previous fiscal year.

It also said that footwear accounted for a significant proportion of goods seized in Fiscal Year 2006, at 41% of total value. This was a major increase over the previous year, when footwear accounted for only 10% of total seizures, by value.

Wearing apparel, handbags, computers, and consumer electronics (including power strips, DVD players, and cell phones) also figured prominently in the seizures made by CBP during the past fiscal year. Consumer electronics seizures represent a particular concern as these fake products may pose health and safety risks, the US maintained.

The US paper also outlined methods used by US customs authorities to use "risk modelling methods" (which look at variables to calculate the risk that a shipment contains counterfeit products), and "post-entry verification audits" (which identifies and penalizes importers after counterfeit goods are sold).

According to trade officials, China led a number of countries in expressing their discomfort, even before the agenda was adopted. They stressed that they were not blocking the agenda, but said that this could not be a permanent agenda item.

They stressed that the TRIPS Agreement gives countries the right to choose how to implement and enforce its provisions, and that enforcement cannot be considered separately from other provisions, including those on non-discrimination and on avoiding creating unnecessary barriers to trade.

They also argued against duplicating work in the World Customs Organization and World Intellectual Property Organization.

A number of countries supported China, either before the agenda was adopted or during the discussion. These were India, Argentina, Cuba, South Africa and Brazil.

On the other hand, Canada, El Salvador, New Zealand, Australia, the EU, Japan and Switzerland supported more exchange of information.

As to other issues, the least-developed countries (Bangladesh speaking) asked the Secretariat to help identify the technical assistance needs under their extended transition period.

Also, five countries have now accepted the amendment of the TRIPS Agreement (on compulsory licensing of pharmaceutical patents for export to countries unable to make the products).

The Chair urged other countries to follow in order to meet the year-end deadline.

At the end of the meeting, Chairperson Ambassador Trevor Clarke of Barbados handed over the Chairmanship to Ambassador Yonov Frederick Agah of Nigeria.