INTELLECTUAL PROPERTY (TRIPS)

In the months leading up to the Seattle Ministerial Conference, the TRIPS Council, which oversees the operation and implementation of the TRIPS Agreement has been discussing a number of issues which could lead to changes to the agreement.

These include issues related to geographical indications, intellectual property protection for biotechnological inventions and plant varieties and the possibility that one country could take legal action under the TRIPS Agreement even if the agreement has not specifically been violated ("non-violation" cases).

In addition, 2000 sees two major developments in TRIPS: developing countries (excluding the least developed) have to conform with the TRIPS Agreement on 1 January 2000, and the TRIPS Council is due to review the agreement’s implementation — although a “review” does not necessarily lead to renegotiation or any other action.

These issues have been discussed or are due to be handled in the TRIPS Council. However, members have also raised them in the WTO General Council’s preparations for the Seattle Ministerial Conference. There are a number of proposals for the Seattle meeting to mandate negotiations or other work on these subjects after Seattle. Some members see some of them as “implementation” issues to be settled in advance.
 

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Geographical indications 

Simply put, geographical indications are 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. The TRIPS Agreement provides a higher level of protection for geographical indications for wines and spirits (i.e., subject to a number of exceptions, they have to be protected even if misuse would not cause the public to be misled).

Information that members have supplied during a fact-finding exercise shows that countries employ a wide variety of legal means to protect geographical indications: ranging from specific geographical indications laws to trademark law, consumer protection law, or common law. The TRIPS Agreement and current TRIPS work in the WTO takes account of that diversity.

The agreement calls for negotiations on two aspects of geographical indication protection, although it does not say when these should take place:

• the creation of a multilateral system for notifying and registering geographical indications for wines (the 1996 Singapore Ministerial Conference also called for preliminary work on "spirits") (Article 23.4)
• increasing protection for individual geographical indications. (Article 24)

Proposals for a system for notifying and registering geographical indications for wines (and spirits) have already been submitted to the TRIPS Council and discussions are due to continue in 2000. In all cases, participation in the system would be voluntary. One group of proposals sees the system as a database: members would report the geographical indications that they protect, and other members would take the information into account when they provide their own protection. Another group includes obligations — subject to certain conditions — for WTO members to protect the names listed in the register.

A number of countries have proposed extending the higher level of protection beyond wines and spirits to other products, including handicrafts, agricultural products and other beverages. Some members oppose the extension. 

 

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Plant varieties: Article 27.3(b)

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.

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 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.

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”.

Whether the subject stays under review in the TRIPS Council or becomes a negotiation topic remains to be seen.
 

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Non-violation cases (Article 64.2)  

In principle, disputes in the WTO involve allegations that a country has violated an agreement or broken a commitment.

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. 1995–99).

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 commitments.
 

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Developing countries’ compliance 

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 complying.
 

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Technology transfer 

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)
 

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Pharmaceuticals 

Some members are proposing that the World Health Organization’s 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.
 

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Review of the TRIPS Agreement 

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 council’s 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.