THIS NEWS ITEM IS DESIGNED TO HELP THE PUBLIC UNDERSTAND
DEVELOPMENTS IN THE WTO. WHILE EVERY EFFORT HAS BEEN MADE TO ENSURE THE
CONTENTS ARE ACCURATE, IT DOES NOT PREJUDICE MEMBER GOVERNMENTS’
POSITIONS. THE OFFICIAL RECORD IS IN THE MEETING’S MINUTES
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The TRIPS Council also continued to discuss technical
assistance, incentives to transfer technology, and least developed countries,
with Rwanda becoming the latest member to report on its
And delegates learnt about new methods of sharing information on-line, including
the new “transparency toolkit”
on the WTO website, a new joint “portal” for governments to submit information
on their laws simultaneously to the WTO and World Intellectual Property Organization (WIPO),
and latest developments in WIPO’s online services.
The work on the WTO’s side is partly in response to a letter from the General
Council chairperson to all councils and committees on ways to make notifications
and other information flows more up-to-date and more complete in the areas they
The ‘Triplets’: Article 27.3(b), biodiversity and
The discussion covered two related issues.
The “disclosure” proposal. This issue is
Members broadly stuck to their previous positions.
Bolivia’s paper (IP/C/W/545). This was
first introduced at short notice in the previous meeting in
March. Members have now had more time to
consider it and could discuss it more fully.
Bolivia is calling for:
a ban on the patenting of all life forms, including plants, animals and parts
of plants or animals, gene sequences, micro organisms as well as all processes
including biological, microbiological and non biological processes for the
production of life forms and their parts
ensuring the protection of the innovations of indigenous and local farming
communities and the continuation of the traditional farming practices including
the right to save, exchange and save seeds, and sell their harvest
preventing anti competitive practices which threaten food sovereignty of
people in developing countries
protection for the rights of indigenous communities and prevent any private
monopolistic intellectual property claims over their traditional knowledge.
This would be undertaken through the reviews of the relevant provision of the
TRIPS Agreement —Article 27.3(b) — and would involve amending the agreement.
Article 27.3(b) deals with patentability or non-patentability of plant and
animal inventions, and the protection of plant varieties. Broadly speaking, it
allows governments to exclude some kinds of inventions from patenting, ie,
plants, animals and “essentially” biological processes (but micro-organisms, and
non-biological and microbiological processes have to be eligible for patents).
However, plant varieties have to be eligible for protection either through
patent protection or a system created specifically for the purpose (“sui generis”),
or a combination of the two.
In other words, Art.27.3(b) offers countries the choice in some circumstances of
whether to protect or not, but in others requires them to provide protection of
some kind. Bolivia’s proposed ban would turn that around.
Some developing countries supported Bolivia. Others said it should be considered
seriously, but one added that its own law does protect some forms of inventions,
Some countries — mainly developed —countered that patent protection is needed
for biotechnology inventions, which is important for health and food through new
medicines and agricultural chemicals. They also said that if the financial
benefits or royalties from inventions are to be shared, then the inventions have
to be patented, as in the “disclosure” proposal.
TRIPS and public health
The Par.6 system and the annual review.
The 2003 “waiver” (and the 2005 pending TRIPS amendment) removes a requirement
that generics produced under compulsory licence should be mainly for the
domestic market, which would hinder their export to countries that cannot make
the medicines. It is sometimes called the “Paragraph 6” system after the
provision in the 2001 Doha Declaration on TRIPS and Public Health that led to
its creation. See explanation.
The TRIPS Council reviews how well the system is working every year, usually in
October, but more recently with little depth or detail.
Agreed and not agreed: Following a number of consultations earlier this year,
members have now agreed that at this October meeting, the TRIPS Council will set
aside a whole day to discuss the issue. They also agree that they would like
some kind of additional meeting or workshop before that to discuss experiences
in using or trying to use the system in practice.
They disagree on whether the earlier meeting should include representatives of
non-governmental organizations, pharmaceutical companies and other experts
(proposed by India, China and some other developing countries), or whether it
should only be for members’ delegates (the view of mainly developed countries).
Some others are non-committal.
Two proposed compromises were suggested in this meeting, neither receiving
Chairperson Martin Glass suggested two events in September, one for delegates
under the auspices of the TRIPS Council and another for broader participation as
part of the WTO’s Public Forum.
However, India, China and others said they wanted the broader event also to be a
TRIPS Council activity.
India’s proposed compromise was for a two-part TRIPS Council event with one
session for delegates only and the other for broader participation.
Countries favouring an event with broader participation said similar workshops
have been organized in other subjects in the WTO. Those opposing it said the
first step should be for members to exchange information on their experiences,
which would then help delegates set the agenda for a broader event, if one is
needed. These countries said members have not yet described any problems they
have faced in trying to use the system, even though there have been numerous
opportunities to do so.
Amb.Glass will continue his consultations on the event or events to be held
before the October annual review. (Some countries also said they would like the
additional event to be held close to the October review so that delegates from
capitals could attend.)
Underlying the difference is the view from some developing countries that the
“Par.6” system may not be working since it has only been used once, and that one
occasion (exports from Canada to Rwanda) took a long time, a view repeated in
Canada, the only country to have described its experience in the TRIPS
Council, repeated that the time spent on
implementing the actual Par.6 requirements was short, and that additional time
needed overall was because of other factors.
Some other developed countries argued that the Par.6 system itself might not be
the reason for the system being rarely used: patented medicines might be
available at lower prices that are influenced by the threat of a compulsory
licence; or generics could be made in countries that are able to manufacture
them and where the medicines are not under patent protection, for example.
These countries also said that before the discussion is broadened to include
outsiders, members should describe what exactly the problems are. Are they, for
example, the notification requirement of the Par.6 system? Or the packaging and
other methods needed to prevent the drugs being diverted to the wrong markets?
Or difficulties in finding generic producers? Or issues to do with ensuring that
the generics are effective and safe (a topic that the African Group wants to
When one country mentioned that it was aware of other attempts to use the
system, which had not borne fruit, another delegation said that members should
Compulsory licensing: Ecuador
Ecuador said a 2009 presidential decree had created the legal basis for the government to grant compulsory licenses for medicines, and it had recently used the decree to issue a compulsory licence to import a generic version of Ritonavir/Lopinavir, an important AIDS medicine.
Speaking under the “other business” part of the agenda, Ecuador said the decree has allowed it to use the flexibilities that are allowed under the TRIPS Agreement. India and Cuba welcomed the move, as did Egypt, which added that it hoped this rare use of compulsory licensing by a developing country would help to fight the stigma attached to its use.
(Note that because the imported generic medicine was not manufactured under compulsory licensing, this was not a use of the Par.6 system. See explanation)
Concern: China and India, supported by a number of other developing countries,
called for this topic to be discussed because they are concerned about
provisions that go beyond the standards of the TRIPS Agreement in bilateral,
regional and plurilateral agreements, in this case on enforcement.
Causing particular concern to them is the draft Anti-Counterfeiting Trade
Agreement (ACTA) being negotiated by Australia, Canada, the EU and its 27 member
states, Japan, Rep.Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland
and the US.
Briefly, China’s and India’s lengthy statements argued that ACTA and other
Conflict with TRIPS Agreement (a reference to
and other WTO agreements, and cause legal uncertainty
Undermine the balance of rights, obligations and flexibilities that were
carefully negotiated in the various WTO agreements
Distort trade or create trade barriers, and disrupt goods in transit or
Undermine flexibilities built into TRIPS (such as for public health, and trade
in generic medicines)
Undermine governments’ freedom to allocate resources on intellectual property
by forcing them to focus on enforcement
Set a precedent that would require regional and other agreements to follow
suit. (One example cited was negotiations involving CARIFORUM, the group of
Caribbean states. However, a delegation representing CARIFORUM said it
understood the concerns but denied that CARIFORUM would have to apply ACTA’s
They also argued that the focus on enforcement did not take into account a
country’s level of development.
A number of developing countries broadly supported the concern.
Reaction: ACTA participants voiced their concerns about what they saw as a
steadily increasing level of counterfeiting and piracy. They countered that the
draft ACTA agreement will not conflict with TRIPS and other WTO provisions. They
denied it would upset the negotiated balance, distort legitimate trade or
undermine TRIPS flexibilities. One said generic medicines would not be affected
since ACTA does not deal with patents.
They said that ACTA was necessary because counterfeiting is no longer a question
of products such as fake luxury watches, but involves commercial scale
production of fake medicines, car and aircraft parts and other products, which
are dangerous to health and safety, and that developing countries are
Some of them also said they had to get together outside the WTO because
countries had opposed discussing enforcement substantively in the TRIPS Council.
Conclusion: The TRIPS Council took note of the comments. (This is not a
permanent agenda item and whether or not it is discussed in future meetings
depends on what members propose.)
The two African organizations that will be invited to observe TRIPS Council
sessions, meeting by meeting, are: the anglophone
African Regional Industrial
Property Organization (ARIPO) and francophone Organisation Africaine de la
Propriété Intellectuelle (OAPI).
Members continued to disagree on whether the Secretariat of the Convention on
Biological Diversity should be an observer in the council.
Mr Martin Glass of Hong Kong, China.
Tuesday-Wednesday 26—27 October 2009 (could change)
• CBD: Convention on Biological Diversity.
• geographical indications (GIs): Place names (or
words associated with a place) used to identify products
(for example, “Champagne”, “Tequila” or “Roquefort”) which
have a particular quality, reputation or other
characteristic because they come from that place.
• modalities: The way or method of doing something
— in the Doha Development Agenda negotiations these are
blueprints for the final deal, eg, how to cut tariffs, and
reduce agricultural subsidies and support, along with
flexibilities to deal with various sensitivities. Once the
modalities have been agreed, countries can apply the
formulas to tariffs on thousands of products and to
various support programmes.
• special sessions: meetings of WTO councils and
committees focusing only on the Doha Development Agenda
• TRIPS: Trade-related aspects of intellectual
> More jargon:
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