varieties: Article 27.3(b) 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.
It is part (b) (i.e. Article
27.3(b)) which is under review as required by the TRIPS Agreement and is
also the subject of proposals for Seattle.
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
include: the pros and cons of various types of protection (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; and whether there is a conflict between the TRIPS
Agreement and the international Biodiversity Convention (CBD). Countries have expressed a
range of opinions on all these subjects, and some are seeking clarification on issues such
as the meaning of the term micro-organism and the difference between
biological and microbiological processes.
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.
Whether the subject
stays under review in the TRIPS Council or becomes a negotiation topic remains to be seen.
Non-violation cases (Article 64.2) back
In principle, disputes
in the WTO involve allegations that a country has violated an agreement or broken a
Under the goods (GATT)
and services (GATS) agreements, 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
market access opportunities struck during multilateral negotiations.
The TRIPS Agreement
has a temporary ban on non-violation disputes (Article 64.2) disputes can only
be brought under the TRIPS Agreement if the accused country is specifically alleged to
have violated a provision. Article 64.2 says non-violation complaints cannot be
brought to the WTO dispute settlement procedure during the first five years of the WTO
Agreement (i.e. 199599).
A number of countries
want the ban to continue, at least until the implications have been more fully examined.
They argue that TRIPS is unlike GATT and GATS because it sets minimum standards and not
the rules for market access or schedules of commitments. 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
Developing countries compliance back
On 1 January
2000, developing countries have to comply with the TRIPS Agreement. (Least-developed
countries have until 1 January 2006.) Several developing countries are asking for
more time in order to deal with the large legislative and administrative burden of
Technology transfer back
The proposals for the
Seattle meeting include strengthening technology transfer provisions in general
(Articles 7 and 8), and tightening obligations for developed countries to provide
incentives for their enterprises and institutions to transfer technology to
least-developed countries (Article 66.2)
Pharmaceuticals back to top
Some members are
proposing that the World Health Organizations list of essential drugs be exempt from
patentability. Alternatively, they say developing countries should be able to issue
compulsory licences for these drugs (i.e. force the patent holder to license other
manufacturers, subject to appropriate conditions such as fees) so that the drugs can be
supplied at "reasonable" prices.
Review of the TRIPS Agreement back
The review is required
in 2000, under Article 71.1. The TRIPS Council is due to take this issue up at its
first meeting in 2000 (currently scheduled to be held in March). What the review will
involved depends on the outcome of the Seattle Ministerial Conference and informal
consultations between members and the councils chairman.
Among the topics on
the table for Seattle are: ensuring that the TRIPS Agreement responds effectively and
neutrally to new technological development and practices; incorporating new trade-related
intellectual property treaties adopted outside the WTO; and streamlining administrative
aspects such as harmonizing some aspects of the way governments process patent
applications. Many of these proposals come from developed countries.