|
One proposal has even been submitted to the
agriculture negotiations themselves, describing protection for
geographical indications as a market access issue for agricultural
products. According to this argument, geographical indications improve
product differentiation, which is an important feature of competition.
Consumers would benefit because they are offered more choice with more
information about product quality. Producers would also benefit
because they can develop quality products and are free from unfair or
misleading competition in markets that import their products,
according to this argument.
TRIPS and health
back
to top
The fact that all members agree on the need for
a ministerial statement on TRIPS and health, shows that everyone
agrees that this issue is vitally important. All members also share
the view that intellectual property protection is necessary for
creating new medicines, and that the TRIPS Agreement must be
respected.
The objective of a ministerial text on TRIPS and
health is to clarify what governments can do under the TRIPS
Agreement, and to reduce their uncertainties about using the
flexibilities that are built into the agreement. A separate
declaration on this subject seems to be favoured among most WTO
members.
Among the flexibilities most commonly discussed are
compulsory licensing and parallel imports. Compulsory licensing is
when governments authorize other manufacturers to make a drug under
licence without the patent owner’s approval. This is allowed under
certain conditions in the TRIPS Agreement .
Parallel importing is where a product sold more
cheaply in one country is imported into another without the patent
holder’s permission. Countries’ laws differ on whether they allow
parallel imports. The TRIPS Agreement simply states that governments
cannot bring legal disputes to the WTO on this issue.
One issue member governments have discussed is the
scope of the proposed ministerial declaration. Some favour emphasizing
public health objectives as a whole. Others prefer to focus more
specifically on ensuring poorer populations have access to medicines,
particularly to deal with large-scale, life-threatening epidemics (or “pandemics”) such as HIV/AIDS, malaria, tuberculosis and
other diseases.
Many developing countries have proposed that the
declaration should state that nothing in the TRIPS Agreement prevents
governments from undertaking public health policies, and that members
should refrain from bringing legal disputes to the WTO on this
subject.
Some developed countries want to ensure that
clarifications do not weaken legal rights and obligations under the
agreement. They want ministers to affirm strongly that intellectual
property protection helps health policies by encouraging new drugs to
be invented — a view that all members share, although with differing
degrees of emphasis. And they are reluctant to accept restraints on
their right to use the dispute settlement procedures.
One of the details being discussed is the difficult
question of how countries with limited manufacturing capabilities can
take advantage of compulsory licensing. At the centre of the
discussion is a provision in the TRIPS Agreement which says that
products made under a compulsory licence must be supplied
predominantly for the domestic market.
Article 27.3(b) and beyond: plant varieties, biodiversity,
traditional knowledge, benefit-sharing back
to top
Article 27 of the TRIPS Agreement defines the
types of inventions which have to be eligible for patent protection
and those which can be exempt. These include both products and
processes, and they cover all fields of technology.
|
‘Patentable
inventions’
In
general, inventions eligible for patenting must be new,
involve an inventive step (or be non-obvious)
and be capable of industrial application (or be
useful). Article 27 also lists inventions which
governments do not have to make eligible for patent
protection.
|
Part (b) of paragraph 3 (i.e.
Article 27.3(b))
covers biotechnological inventions. It is currently under review in
the TRIPS Council, as required by the TRIPS Agreement. Some countries
have broadened the discussion to cover biodiversity and traditional
knowledge. They are now seeking a ministerial statement on the
subject.
Broadly speaking, Article 27.3(b) allows
governments to exclude 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 either
for patent protection or through a system created specifically for the
purpose (“sui generis”), or a combination of the two.
For example, countries could enact a plant varieties protection law
based on a model of the International Union for the Protection of New
Varieties of Plants (UPOV).
The review of Article 27.3(b) began in 1999 as
required by the TRIPS Agreement. The topics raised in the TRIPS
Council’s discussions include: the pros and cons of various types of
protection for new plant varieties (patents, UPOV, etc); how to handle
moral and ethical issues (e.g. whether invented life forms should be
eligible for protection); how to deal with traditional knowledge and
the rights of the communities where genetic material originates
(including benefit sharing when inventors in one country have rights
to creations based on material obtained from another country); and
whether there is a conflict between the TRIPS Agreement and the UN
Convention on Biological Diversity (CBD).
Countries have expressed a range of opinions on all
these subjects. For example, one proposed idea would require patent
applicants to disclose the origin of genetic material used, which
advocates say would make benefit sharing easier to implement. An
alternative view emphasizes benefit sharing through prior agreement
between the researchers and the host country where the genetic
material originates, instead of disclosure in patent applications.
Some are seeking clarification on issues such as
the meaning of the term “micro-organism” and the difference
between “biological” and “microbiological”
processes. Some countries say life forms and living creatures should
not be patented and that ethical questions should also be discussed.
Some developing countries want to make sure that
the TRIPS Agreement takes account of more specific concerns such as
allowing their farmers to continue to save and exchange seeds that
they have harvested, and preventing anti-competitive practices which
threaten developing countries’ “food sovereignty”. And so
on.
Many of these points underlie the discussions on
the draft ministerial declaration, although the text will not go into
detail — it will establish a means of addressing these points.
New technologies
back
to top
New technologies can cover anything from
biotechnology to electronic commerce. Members differ on whether the
Ministerial Declaration’s portion on TRIPS should refer to the TRIPS
Agreement keeping abreast of new technologies as a whole. Some
biotechnology issues are raised under Article 27.3(b),
biodiversity and benefit sharing. The TRIPS Council’s discussions on
e-commerce have raised a number of questions including Internet domain
names and electronic trading in copyrighted material. The TRIPS
Council is also following discussions outside the WTO, particularly in
the World Intellectual Property Organization.
Non-violation cases (Article 64.2)
back
to top
In principle, disputes in the WTO involve
allegations that a country has violated an agreement or broken a
commitment.
Under the goods agreement (GATT) and the services
(GATS) specific commitments, countries can complain to the Dispute
Settlement Body if they can show that they have been deprived of an
expected benefit because of some governmental action (for example a
new production subsidy on an item on which a tariff concession has
been made) — even if it does not violate one of these agreements.
The purpose of allowing these “non-violation” cases is to
preserve the balance of advantage (such as market-access
opportunities) struck during multilateral negotiations.
The TRIPS Agreement (Article 64.2) temporarily
banned non-violation disputes. It says non-violation complaints cannot
be brought to the WTO dispute settlement procedure during the first
five years of the WTO Agreement (i.e. 1995–99)
There are different views about whether this ban
continues. However, the TRIPS Council has continued its discussion on
whether non-violation complaints should be allowed in intellectual
property, and if so, to what extent. At least one country says
non-violation cases should be allowed in order to discourage members
from engaging in “creative legislative activity” that would
allow them to get around their TRIPS commitments. Some would like to
see the ban continued, and have been calling for ministers to state
this in their Doha declaration. Some have suggested additional
safeguards.
Opinions also differ as to whether non-violation
cases can now automatically be brought to the WTO dispute settlement
procedure, or whether the TRIPS Agreement requires the “scope and
modalities” of non-violation cases to be sorted out first.
Developing countries’ compliance
On 1 January 2000, developing countries had to
comply with the TRIPS Agreement. (Least-developed countries have until
1 January 2006, with the possibility of a further delay.) The
TRIPS Council has begun a two-year programme of reviewing the
developing countries’ TRIPS-related laws. A number of developing
countries say they have difficulty implementing the agreement and have
asked for some deadlines to be postponed, particularly the 2006
deadline for least-developed countries, and more generally, developing
countries’ obligations on pharmaceutical and biotechnological
inventions. Some developed countries say it is too soon to consider
postponing the 2006 deadline.
Technology transfer
In the preparations for the Doha Ministerial
Conference, technology transfer has been discussed as an “implementation” issue — i.e. among the problems
developing countries say they face in implementing the current WTO
agreements. Developing countries stress that technology transfer is a
key part of the TRIPS Agreement since it appears in the objectives
(Article 7), principles (Article 8), and a number of other
articles. They propose action to promote more effective implementation
of technology transfer provisions in general (Articles 7 and 8),
and developed countries’ obligations to provide incentives for their
enterprises and institutions to transfer technology to least-developed
countries (Article 66.2)
Review of the TRIPS Agreement
back
to top
The TRIPS Council began reviewing the TRIPS
Agreement in 2000, as required by Article 71.1. Some countries
want the review to focus on an examination of how well the TRIPS
Agreement has met its objectives and principles.
The objectives are spelt out in Article 7 which
says “The protection and enforcement of intellectual property
rights should contribute to the promotion of technological innovation
and to the transfer and dissemination of technology, to the mutual
advantage of producers and users of technological knowledge and in a
manner conducive to social and economic welfare, and to a balance of
rights and obligations.”
The principles (Article 8) allow countries to
“adopt measures necessary to protect public health and nutrition,
and to promote the public interest in sectors of vital importance to
their socio-economic and technological development, provided that such
measures are consistent with the provisions of” the TRIPS
Agreement; and to take action “to prevent the abuse of
intellectual property rights by right holders or the resort to
practices which unreasonably restrain trade or adversely affect the
international transfer of technology.”
Some other members want the review to be based on
actual experience with implementation.
|
