The two-hour exchange of information and ideas was the first time the council has discussed the topic since it was set up with the WTO’s creation in 1995. It was on the agenda of this 6–7 November meeting at the request of the US and Brazil. They offered different perspectives on the subject but agreed that the council should broaden its deliberations into this important subject.
Other members agreed. Altogether, 18 delegations and two observer organizations shared with the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) — which comprises all WTO members — their views on the role of intellectual property in innovation and development, and in some cases the policies they have introduced to promote innovation.
Meanwhile, some countries sought ways of moving talks on two issues forward despite the hiatus in the Doha Round negotiations: proposals to amend the TRIPS Agreement to help protect biodiversity, and to give all products the same enhanced protection for geographical indications — names identifying the origin and quality of products — as wines and spirits (www.wto.org/gi).
On the proposed “disclosure” amendment (details below), they suggested that the Secretariat be asked to compile all the ideas produced so far into new documents and to organize an information session. On biodiversity and geographical indications, they organized their own roundtable discussion after the TRIPS Council meeting.
But countries opposing both proposals said their positions were unchanged. Some said the roundtable meeting on biodiversity and geographical indications violated the spirit of the “balanced” and “inclusive” nature of talks among ambassadors and other negotiators on reviving the Doha Round because it was organized by one side, the “W52” group.
A substantial amount of time was devoted to various aspects of technical assistance for least developed countries in events before the meeting and during the council meeting itself.
Among other topics, least developed countries also proposed postponing their deadline for protecting intellectual property under the TRIPS Agreement, a decision that has to be taken before the deadline expires on 1 July 2013.
The council also reviewed how the “Paragraph 6” system on intellectual property and public health (details below) is functioning — an annual event.
Intellectual property and innovation
Agreement. Members agreed that this topic, which is broader than the usual discussions in the TRIPS Council, is important. The US and others described innovation as vital for economic growth, jobs, development and better standards of living. Brazil said that a discussion on the topic, without judging the outcome in advance, should be part of an assessment of the TRIPS Agreement as it approaches its 20th anniversary.
Most of the speakers broadly agreed that a balanced intellectual property system has a role to play in spurring innovation, a term which is not defined in the TRIPS Agreement. The agreement strikes a balance between protecting intellectual property by giving creators exclusive rights, usually for a limited time, and enabling the inventions and creations to be disseminated to society as a whole. That balance includes flexibilities, allowing governments to bypass protection under certain conditions.
Some members stressed that the topic is not only about inventions and patents, but also covers other areas such as trademarks and copyright. The benefits are technological, commercial and cultural, they said.
Differences. But speakers differed in their emphasis. Some developing countries argued that the system gives advantages to richer countries and larger corporations, and stressed the need to use the flexibilities. However, several of them also described their national innovation strategies, including policies to increase public awareness, encourage their companies to work with universities and research institutes to develop inventions and brands, and to strengthen enforcement.
Some developed countries said that too much emphasis on flexibilities and mandatory technology transfer would undermine the incentive to innovate that intellectual property protection provides. They also argued that “local working requirements” would be counterproductive. This is where a country requires, for example, that if a product is patented in its system, the product must be made in that country. Some described a good intellectual property system as a means of encouraging foreign investment.
Some described their innovation policies as a mix of government funding for basic research and development with market-oriented intellectual property regimes. In some cases legislation can reward patents used for humanitarian purposes.
Giving smaller companies a boost. Some developed and developing countries agreed that small and medium-sized enterprises are at a disadvantage when competing against large corporations. They have introduced programmes to help smaller companies work with research institutions and to be in touch with other companies — sometimes through an online market for intellectual property — so inventions and creations can be shared or traded.
Data. Spending on research and development almost doubled between 1993 and 2009, with 70% coming from high income countries, the World Intellectual Property Organization (WIPO) said. Of the 13% growth coming from low and middle income countries, China accounted for over 10%, it said. Outlining the findings of its 2011 World Intellectual Property Report, WIPO added that innovation increasingly involves international collaboration and sharing inventions between firms.
Looking for more?
The ‘triplets’: Article 27.3(b), biodiversity and traditional knowledge www.wto.org/tripsbio
Positions remained broadly unchanged on these issues, although the countries calling for the TRIPS Agreement to be amended sought to give the stalled talks a push. They suggested that the Secretariat be asked to produce a new compilation of the ideas that have emerged from 15 years of proposals and discussions — the last compilations were issued in 2006. They also asked for an information session so they could be briefed on the content. Some countries (the US and the African Group) said they needed more time to think about this and no decision was taken.
The call came from countries continuing to argue that the TRIPS Agreement should be amended so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions, evidence that they received “prior informed consent” (a term used in the UN Biological Diversity Convention or CBD), and evidence of “fair and equitable” benefit sharing. They say this is necessary to align the TRIPS Agreement and CBD. Some blamed the hiatus in this topic on the deadlock in the Doha Round negotiations (www.wto.org/dda).
Other countries repeated their view that the TRIPS Agreement does not need to be changed because it does not conflict with the CBD. They continued to argue that the best place to discuss this is in the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, where they said progress is being made on drafting a new legal instrument. However, some of them said they did not object to the Secretariat updating its compilations.
Bolivia, meanwhile, repeated its call for the TRIPS Agreement to be amended to ban patenting of all life forms on ethical grounds and because patents are exploited by big corporations (document IP/C/W/554. See also news of June 2011 meeting).
Article 27.3(b) deals with permitted exceptions to patenting 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 of whether to protect or not in some circumstances, and requires them to provide protection of some kind in others. Bolivia’s proposed ban, first presented in March 2010, would overturn that.
Looking for more?
TRIPS and public health: annual review of the Par.6 system
Full explanations: www.wto.org/tripshealth and www.wto.org/english/tratop_e/trips_e/amendment_e.htm
See also: the 2010 review, and follow-up.
Background. This was the annual review of how the “Par.6 system” is working. The system removes an intellectual property obstacle preventing countries from using compulsory licences to manufacture generic medicines exclusively for export to countries unable to make them themselves. It refers to paragraph 6 of the 2001 Doha Declaration on TRIPS and Public Health.
The General Council first agreed to remove the obstacle through a 2003 “waiver”, a legal means allowing WTO members not to comply with an obligation or provision in a WTO agreement. Two years later it agreed to an almost identical amendment to the TRIPS Agreement, which is still pending.
The discussion. This was brief and broadly followed the lines of previous discussions. China, India and some others repeated their call for a workshop to examine how well the system is working, with delegates, non-government organizations, research and generic drug companies, health workers and others. They said the annual reviews have become ritualistic with no new information on why the system is little used.
The US, EU, Japan and others continued to oppose this. They said member governments should be the ones to describe what the obstacles are, and they repeated that other policies are also important for making medicines affordable, including tariff reductions on medicines and active ingredients.
The WTO Secretariat reported on technical assistance activities on TRIPS and health, including in cooperation with the World Intellectual Property Organization (WIPO) and World Health Organization (WHO). WIPO also reported on new collaboration on research designed to provide affordable medicines: www.wiporesearch.org and www.wipo.int/research.
Accepting the TRIPS amendment: since the last meeting in June, Chinese Taipei has accepted the TRIPS Agreement amendment. Chile and Turkey said acceptance is being discussed in their parliaments and should be approved soon. (In practice the amendment is already in force through a “waiver”.)
“Non-violation” complaints — This is a technical issue on the possibility of countries challenging each other in the WTO dispute settlement procedure on intellectual property issues even if no agreement has been violated — only an expected right. This is temporarily excluded for intellectual property. The US and Switzerland continued to argue that the moratorium should not be extended anymore because the ability to bring cases of this kind maintains the balance struck when the TRIPS Agreement was negotiated, and because it preserves expectations on intellectual property protection.
Most other speakers continued to argue that non-violation cases should not be allowed in intellectual property, some arguing that it puts at risk the flexibilities written into the TRIPS Agreement.
The WTO Secretariat produced a new paper compiling the issues raised (document (IP/C/W/349/Rev.2) and held a briefing session on it. Members said they would need time to consider this complex issue and would be willing to discuss it further, but their positions remained unchanged. (See www.wto.org/trips#issues, look for “non-violation complaints”.)
Least developed countries. Discussed in the meeting and in workshops before it were ways of improving information about least developed countries’ needs for technical assistance on their intellectual property regimes, and about the incentives developed countries provide to their companies and institutions to transfer technology to these companies. Delegates said this was useful. They will continue to work on it.
The least developed countries (Haiti speaking) also asked for the deadline for them to provide intellectual property protection to be extended “for as long as the WTO member remains a least developed country”. After one extension, it is due to expire in on 1 July 2013.
The 2011 Ministerial Conference in Geneva “invited” the TRIPS Council to “give full consideration to a duly motivated request from least developed country members for an extension of their transition period […] and report thereon to the WTO Ninth Ministerial Conference” now scheduled to be held in Bali in December 2013.
Because this was put on the agenda late, under “other business”, no decision was taken. The group asked for this to be a normal agenda item at the next meeting in March 2013.The proposal is in document IP/C/W/583.
Havana Club. Also under “other business”, Cuba repeated its complaint about the US failing to protect the “Havana Club” trademark for rum. The US said it considers this to come under the WTO Dispute Settlement Body (DSB), and referred the TRIPS Council to its DSB statements. (Minutes of the Dispute Settlement Body can be found here)
TRIPS COUNCIL (REGULAR) MEETINGS (could change):
- Tuesday-Wednesday 5–6 March
- Tuesday-Wednesday 11–12 June
- Tuesday-Wednesday 5–6 November