Bridges Trade BioRes • Volume 6 • Number 19 • 3rd November 2006

TRIPS COUNCIL: DEBATES ON GENETIC RESOURCES AND TK REMAIN DIVISIVE

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TRIPS COUNCIL: DEBATES ON GENETIC RESOURCES AND TK REMAIN DIVISIVE

WTO Members continue to disagree on whether (and how) to use the intellectual property system to prevent the misappropriation of genetic resources and traditional knowledge (TK). While the item again featured on the agenda of the Council for Trade-related Aspects of Intellectual Property Rights (TRIPS) at its 25-26 October meeting — the first since the collapse of the Doha round in July this year — discussions did not make any headway.

The need for implementing effective international measures to prevent the ‘theft’ of genetic resources and associated TK — often referred to as ‘biopiracy’ — has been a matter of concern for many developing countries. To address this issue, the countries have proposed an amendment to the TRIPS Agreement. This would entail incorporating a requirement to disclose the origin of genetic resources and associated TK in patent applications along with evidence of prior informed consent and benefit sharing (see Bridges Trade BioRes, 16 June 2006, http://www.ictsd.org/biores/06-06-16/story3.htm). They argue that such a requirement would be necessary to ensure that the TRIPS Agreement did not undermine the objectives of the Convention on Biological Diversity (CBD).

At this session of the Council, Peru submitted a new paper to strengthen its case for the amendment by elaborating on its earlier submission on biopiracy cases (IP/C/W/458, available at http://docsonline.wto.org). It also sought to answer some of the technical questions raised by the US on the proposed disclosure requirement (IP/C/W/469). Peru noted that the list of cases presented in the last paper only reflected potential cases that could be used as a basis for further analysis. Peru suggested that an effective assessment of actual biopiracy cases would require incorporating a universal obligation to disclose the origin/source/legal provenance of biological resources in patent applications.

Many developing countries, including Brazil, India, Ecuador, Venezuela, China, Sri Lanka and Malaysia, appreciated the paper, echoing Peru’s call for a disclosure requirement in patent application. In contrast, developed countries, such as Australia, Canada, the EU, Japan, Korea, New Zealand, the US and Switzerland, yet again opposed the amendment, stating that they did not see any conflict between the TRIPS Agreement and the CBD. These countries prefer to leave it for each country to establish domestic regimes for preventing misappropriation.

Many developed countries furthermore supported the creation of international traditional knowledge databases for use by patent examiners. Rather than conferring positive rights in the owner (such as copyrights), TK databases serve as a defensive mechanism for the protection of TK by safeguarding against the (illegitimate) procurement of IPRs over the knowledge by others. Such databases have attracted opposition from some quarters, notably some indigenous groups. Since the databases, if publicly accessible, place the knowledge in the public domain, these groups fear that they will encourage third party use without consent while preventing knowledge holders from acquiring the rights over the knowledge. Japan had previously submitted a proposal (IP/C/W/474) calling for the establishment of an international database on traditional knowledge. Peru, Panama, Costa Rica and India are some of the developing countries that have been using traditional knowledge databases to record their TK and to prevent granting of IPRs (both domestically and in third countries) on knowledge already in the public domain.

Other topics discussed at this session of the TRIPS Council included the issue of enforcement of IPRs and the implementation of the TRIPS amendment on public health (see Bridges Weekly, 1 November 2006, http://www.ictsd.org/weekly/06-11-01/story1.htm for further details).

ICTSD reporting.