The new deadline would exempt them from having to protect and enforce pharmaceutical patents and clinical data submitted to obtain marketing approval until they graduate from “least-developed” status. The proposal is being made now because a 2002 decision is due to expire at the end of 2015.

Least developed countries also benefit from a general extension of the deadline to protect intellectual property and implement other WTO intellectual property obligations, including for pharmaceuticals. This is now 1 July 2021 under a 2013 decision covering all intellectual property. Because the newly-tabled proposal was not on the meeting’s agenda, but was mentioned under “other business” the discussion was brief, with a more substantial debate likely at the next meeting in June (details below).

The Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) did discuss at some length women and innovation, with members describing the benefits of gender equality for innovation and entrepreneurship — such as producing and marketing products that are more useful — and what they have done to overcome inequality (more below).

Members repeated their different positions on a number of issues. One is plain packaging for tobacco products — this time triggered by recent moves in Ireland and the UK (details below). Another is the question of whether “non-violation” complaints should be allowed for intellectual property (details below).

They also repeated their positions on a group of intellectual property issues related to biodiversity, where some called for the post-Bali work programme for completing the Doha Round negotiations to include their proposal to amend the TRIPS Agreement so that patent applicants would have to disclose the source of the genetic resources and related traditional knowledge used in their inventions. And they also continued to differ on whether the Secretariat should update three factual notes summarizing points raised in past discussions, and whether the Secretariat of the UN Convention on Biological Diversity (CBD) should brief the council.

At the end of the meeting, chairperson Mothusi Palai of Botswana handed over to Mr Abdolazeez Al-Otaibi of Saudi Arabia.

 

Some details

• Least developed countries and pharmaceutical patents
• Women and innovation
• Plain packaging for tobacco products
• Non-violation complaints

 

Least developed countries and pharmaceutical patents

The least developed countries (Bangladesh speaking) introduced their proposal (document IP/C/W/605) to exempt them from having to protect and enforce pharmaceutical patents and clinical data “for as long as the WTO member remains a least developed country” — the WTO recognizes least developed country status as designated by the UN (pdf).

The proposal tackles one of two interlinked deadlines for the least developed countries. It deals with a 2002 decision to extend the least developed countries’ original deadline for pharmaceutical patents to 1 January 2016. This implemented part of the 2001 Doha Declaration on the TRIPS Agreement and Public Health (paragraph 7). However, in 2013 the TRIPS Council agreed to extend until 1 July 2021 the broader deadline for them to protect all forms of intellectual property including pharmaceutical patents and clinical data — so long as they apply principles of non-discrimination — with a further extension possible when the time comes.

The new document seeks also to exempt least developed countries from having to apply two special transitional provisions known as the “mailbox” (allowing inventors to file patent applications even while there is no patent protection) and “exclusive marketing rights” (both explained here). Least developed countries currently benefit from a separate exemption (a legal “waiver”) from these provisions. (Waivers are granted by the General Council, not the TRIPS Council.)

Document IP/C/W/605 describes in some detail why the least developed countries want to extend the deadline, citing their “special needs and circumstances” and their vulnerability, including their lack of a technological base and local pharmaceutical manufacturing capacity..

Because the proposal was not on the formal agenda of the meeting, but introduced for information under “other business”, the discussion was brief. It will be discussed more substantially at the next TRIPS Council meeting in June.

 

Women and innovation

This latest in a series on “Intellectual Property and Innovation” was dedicated to women. The exchanges, which were not intended to produce any decision, broadly looked at various aspects of the issue of women and innovation, as summarized in a statement by the World Bank:

• The relationship between entrepreneurship and innovation in women-owned businesses.
• “Inclusive innovation” models that bring women into the design and delivery of products for low-income households
• Addressing the under-representation of women in innovation-related education
• Addressing barriers to women’s participation in the economy and trade in particular

Eliminating extreme poverty and boosting economic prospects of the poorest people requires full participation by both men and women, the World Bank said, but women face tougher barriers than men on innovation and entrepreneurship.

“Because of these constraints, women entrepreneurs are more likely to work in the informal economy and in low productivity sectors with limited potential for growth,” the Bank said. “This deprives them and their families of opportunity, and the economy of the full potential of entrepreneurship. Addressing these constraints can help foster women’s entrepreneurship and drive innovation in the economy.”

An example of the result of including women in innovation is a low cost, low-energy refrigerator developed by Indian firms and designed in conjunction with low-income women, helping to make food safer, the Bank said.

Meanwhile, women are under-represented in education on science, technology, engineering and mathematics, but are the majority of small traders crossing borders. While trade can stimulate innovation, “a range of limitations can hinder the participation of women in trade,” the World Bank said, including vulnerability to abuse.

Members’ experience

Proponents of the topic — Norway, Turkey, Japan, the US, the EU — and Montenegro, Mexico, Chile, Switzerland, Canada, Chinese Taipei and India — provided an overview of their strategies for increasing women’s participation in the labour market and innovation. These include national innovation policies that create the suitable environment for women innovators and entrepreneurs to thrive. Speakers mentioned success stories of women entrepreneurs and women inventors in various countries, including patented strawberry packaging in Japan.

Speakers described increasing women’s participation in the work force as “smart economics”, on the other hand, they stated some challenges that limit women productivity in these member countries’ economies. According to some members, women continue to face difficulties in reaching senior positions in science and research but governments are also trying to reduce those challenges by raising awareness and offering prizes for women innovators.

 

Plain packaging for tobacco products

Dominican Republic repeated its concerns about plain packaging for tobacco products, this time triggered by the latest developments in Ireland and the United Kingdom, both of which have notified their proposed laws or regulations to the Technical Barriers to Trade Committee (G/TBT/N/IRL/1 for Ireland and G/TBT/N/GBR/24 for the UK).

Ireland’s draft Bill resumed its legislative process on 17 February 2015, said the EU, which speaks on behalf of its member states. And on 21 January 2015, the UK health minister confirmed the government’s intention to introduce plain or standardized packaging through regulations to be introduced by the end of March and coming into force at the same time as the European Tobacco Products Directive in May 2016. The EU defended both actions.

Dominican Republic, supported by Nicaragua, Honduras, Cuba, Indonesia, Nigeria and Zimbabwe, repeated the complaint that standardized packaging — using standard colours and typefaces instead of brand logos, usually with large health warnings — violates trademark and geographical indications owners’ intellectual property rights, impedes marketing and competition, restricts trade beyond what is needed to protect public health, and has been shown to be unsuccessful in reducing smoking. They urged countries to wait for the outcome of the current WTO disputes before introducing new measures.

Australia (the subject of five legal disputes), Uruguay, Canada, Norway (which said it is starting its own consultations on plain packaging) and New Zealand supported Ireland and the UK and rejected the call to wait for the outcome of the disputes. Australia said it is inappropriate to comment on the disputes.

The five disputes complaints against Australia were brought by Ukraine (dispute settlement case DS434), Honduras (DS435), Dominican Republic (DS441), Cuba (DS458) and Indonesia (DS467). The panels examining the disputes have announced they will not be able to publish their conclusions at least until the second half of 2016.

Click to see full timeline:

 

Non-violation complaints

Non-violation complaints are when one country challenges the legality of another’s actions if it feels it is deprived of an expected benefit, even though no actual agreement or commitment has been violated.

Members have agreed to intensify their discussions as they prepare to decide whether non-violation complaints should stay outlawed for TRIPS or whether to let the present moratorium lapse at the Nairobi Ministerial Conference in December 2015.

Some developing countries fear that if they use flexibilities that are included in TRIPS, such as bypassing some patent rights, this might undermine their policies, for example on improving access to affordable medicines. The US and Switzerland, which favour allowing non-violation cases in TRIPS, sought to allay these fears by saying that the rules only allow non-violation cases when a measure is unforeseen, whereas the use of TRIPS flexibilities was foreseen since they were written into the TRIPS Agreement.

CHAIRPERSON: Mr Mothusi Palai of Botswana, handing over to Mr Abdolazeez Al-Otaibi of Saudi Arabia at the end of the meeting

Next

TRIPS Council (regular) meetings (could change):

2015

• 9–10 June 2015
• 15–16 October 2015