TRIPS


Developing Countries Propose TRIPS Amendment to Fight Biopiracy
Third World Network Info Service on Intellectual Property Issues, 2 June 2011

BEIJING, CHINA: In this article, TWN’s Chee Yoke Ling reviews a recent proposal to amend the WTO TRIPS Agreement, submitted by a large group of developing countries on 15 April 2011 to the Trade Negotiations Committee as part of the ongoing Dohatalks. The communication (TN/C/W/59) is entitled “Draft decision to enhance mutual supportiveness between the TRIPS Agreement and the Convention on Biological Diversity” and proposes to add a new Article 29bis on “Disclosure of Origin of Genetic Resources and/or Associated Traditional Knowledge” in the TRIPS Agreement. The proposal appears to build on the momentum established by the adoption of the Nagoya Protocol on access and benefit-sharing, and is also of interest to the participants at the first meeting of the Intergovernmental Committee for the Nagoya Protocol, held in Montrealfrom 6-10 June 2011. Read the article …

Defusing Disclosure in Patent Applications: a positive strategy to strengthen legal certainty in the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity and support WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
Paul D. Oldham (ESRC Centre for Economic and Social Aspects of Genomics) and Geoff Burton (UNU-IAS), October 2010

This report provides analysis and factual data on ways forward for the successful introduction of a practical system for monitoring the utilization of genetic resources and traditional knowledge in patent applications. It suggests a resolution to a key issue blocking the creation of such a system. This resolution is based on 4 elements: acknowledging and analyzing the current impasse between the Convention on Biological Diversity (CBD), the World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO) on the disclosure of certain biodiversity information in patent applications (Section 1); analyzing a useful precedent for a functional disclosure requirement using the Bayh-Dole provisions of the US Patent Act (Section 2); interrogating the patent system to see to what extent disclosure of countries of origin already takes place (Section 3); and interrogating the patent system to explore disclosure issues with respect to indigenous and local communities and traditional knowledge (Section 4). Read the paper …

Issues related to the extension of the protection of geographical indications provided for in Article 23 of the TRIPS Agreement to products other than wines and spirits and those related to the relationship between the TRIPS Agreement and the Convention on Biological Diversity
Report by the WTO Director-General (WT/GC/W/633, TN/C/W/61), 21 April 2011

GENEVA, SWITZERLAND: This report by WTO Director-General Pascal Lamy, presented to the WTO Trade Negotiations Committee and the General Council, summarizes the informal consultative process regarding the extension of the protection of geographical indications and issues related to the relationship between TRIPS and the CBD. On the latter issue, it is noted that discussions built on the common ground reported in 2008 – broad support for the general principles of prior informed consent and equitable sharing of benefits that are enshrined in the CBD; and agreement on the need to avoid erroneous patents, secure compliance with national benefit-sharing regimes, and ensure patent offices have available the information needed to make proper decisions on patent grants for inventions linked to genetic resources and traditional knowledge (TK).  Members voiced support for the CBD objectives, but remained divided as to the best means to fulfil them within the TRIPS framework. The structured discussions reviewed the practical implications and comparative merits of current proposals – a disclosure requirement, a database system, and national-based approaches to enforcing prior informed consent and equitable benefit sharing – considering how each of these options could effectively help achieve the agreed objectives, while not creating undue burdens. Members considered how databases and disclosure requirements would operate in practice to reduce the risk of patents being incorrectly granted over genetic resources and associated TK. The exchanges covered a number of general themes grouped into four clusters: cluster 1 on the legal character of misappropriation; cluster 2 on costs and benefits of measures, other than the disclosure requirement, to address misappropriation and benefit sharing; cluster 3 on the legal character and enforcement possibilities of national-based approaches, including a contract-based system, especially covering multiple jurisdictions; and cluster 4 on administrative costs and burdens, and the legal certainty and predictability, of a mandatory disclosure requirement within the patent system. Members have consistently voiced support for the principles and objectives of the CBD, and have agreed on the need to take steps to avoid erroneous patents, including through the use of databases, as appropriate, to avoid patents being granted on existing TK or genetic resources subject-matter. However, Members continue to differ on whether the formulation and application of a specific, tailored disclosure mechanism relating in particular to genetic resources and associated TK would be useful and effective in ensuring that the patent system promoted CBDobjectives, or whether other mechanisms should be preferred. Download the report [doc] … Read an IP Watch article on recent WTO discussions, 21 April 2011 …

Plant Breeder’s Rights – A blessing or a curse?
IP Watch, 20 April 2011

GENEVA, SWITZERLAND: In this interview, Niels Louwaars of the Centre for Genetic Resources, Wageningen University, The Netherlands, discusses the importance of plant breeder’s rights, and their treatment under the FAO, the TRIPS Agreement, UPOV and in Europe. He makes the case for a carefully balanced protection for plant breeders and changes to patents in agriculture, in order to ensure a competitive, diversified supply of plant varieties and seeds. Noting that developing countries may have sub-sectors that need maximum protection, such as export horticulture, while at the same time the informal exchange of seeds and new varieties of basic food crops is essential to improve the livelihood of farmers that are not connected to the formal seed systems, he suggests, among others, that a plant breeder’s rights system should respond to these needs and thus recognize the farmers’ rights of such smallholders. Read the interview …

TRIPS Council: Members Debate Biodiversity, Access to Medicine
Bridges Trade BioRes Vol. 11 No. 5, 21 March 2011

GENEVA, SWITZERLAND: WTO members earlier this month debated how current global intellectual property rules affect biodiversity protection and access to medicine, but made little progress on either issue, both of which are priorities for developing countries. The TRIPS Council spent the bulk of its time addressing the relationship between the TRIPS Agreement and the Convention on Biological Diversity. Members addressed three points: the status of the CBD Secretariat in the TRIPS Council; a proposal by Bolivia to exclude life forms from patentability; and a proposal to add a “disclosure requirement” to TRIPS Article 27.3(b) to make up for its absence in the Nagoya Protocol. Of these three points, the last consumed the majority of the speakers’ time. Read the article …

Nagoya gives new context to old views in intellectual property council
WTO release, 1 March 2011

GENEVA, SWITZERLAND: Old positions remained largely unchanged on Article 27.3(b), biodiversity and traditional knowledge at the 1 March meeting of the WTO Council on Trade-related aspects of Intellectual Property Rights (TRIPS Council), but in a new context – the CBD Nagoya Protocol on ABS. Some delegations welcomed the recently resumed consultations on this subject, chaired by WTO Director-General Pascal Lamy. While several members repeated their call for a future briefing by the CBD, there was no consensus on whether the CBD Secretariat should be invited to brief the TRIPS Council on the Nagoya Protocol, as was also the case on whether the CBD should be an observer in the council. Japan, as host country, made a brief presentation on the Protocol. The countries supporting “disclosure” said an amendment of the TRIPS Agreement is still needed because the Nagoya Protocol and the CBD do not make disclosure mandatory and not all WTO members have signed the CBD. Others continue to oppose this, saying that the TRIPS Agreement should not be used as a tool to enforce the Nagoya Protocol. They continued to argue that misappropriation of resources and bad patenting (“biopiracy”) are best tackled through databases, contracts and other means. At the meeting, Bolivia presented more detailed paper on its proposal to amend the TRIPS Agreement so that patenting of all life forms is banned, arguing that patenting life forms is immoral, violates the beliefs and values that indigenous people hold sacred, overturns farmers’ traditional rights to seeds, concentrates the domination of a handful of multinational corporations, jeopardizes food security and undermines humankind’s ability to respond to climate change. Read the release …

The evolution of benefit sharing
Elisa Morgera and Elsa Tsioumani

This article traces the evolution of the use of the legal concept of benefit sharing in the context of the Convention on Biological Diversity (CBD), with a view to highlighting its contribution to indigenous and local communities’ livelihoods. To this end, the article proposes a distinction between inter-State benefit sharing (as identified in the third CBD objective and as usually linked to access to genetic resources) and notably lesser known State-to-community benefit sharing (in relation to the conservation and sustainable use of biodiversity). The article highlights the different legal connotations of the two dimensions of this legal concept, while supporting an integrated interpretation of the CBD. It points to a wide array of benefit sharing-related tools under the CBD that can be used to support indigenous and local communities’ livelihoods in pursuing the convention’s three objectives. The article also identifies other international processes – in the areas of intellectual property, health and climate change – in which these conceptual developments may have a significant influence. Read the guest article …

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