News and Analysis • Volume  • Number  • November 2007

LDCs Submit First Needs Assessments to TRIPS Council

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In recent meetings, the TRIPS Council has considered technical assistance needs assessments prepared by two of the WTO’s poorest Members, as well as revisited a number of long-standing agenda items, such as preventing biopiracy and the enforcement of intellectual property rights.

Governments agreed in November 2005 to extend least-developed countries’ (LDCs’) deadline for implementing and enforcing WTO protections for trademarks, copyright, patents and other intellectual property until July 2013 – seven and a half years later than originally foreseen. The decision asked LDCs to provide the TRIPS Council with “as much information as possible on their individual priority needs for technical and financial co-operation in order to assist them taking steps necessary to implement the TRIPS Agreement.”

At the council’s October 2007 meeting, Sierra Leone (IP/C/W/499) and Uganda (IP/C/ W500) became the first LDCs to formally submit such needs identifications to the WTO.1 Sierra Leone called for financial and logistical assistance to complement its ongoing intellectual property (IP) reform programmes, such as funds to hire IP policy analysts in its trade ministry and to set up a small permanent mission in Geneva. Uganda asked for help in creating a National Intellectual Property Policy Forum through which representatives from government, the private sector and civil society would produce a draft national policy framework.

Both countries set out specific activities and timelines for updating their legal IP frameworks and administrative infrastructures; strengthening enforcement and regulation; and using IP to promote innovation, creativity and technology transfer.

The EU said that it wanted to see more similar submissions from LDCs, so it could consider all of them together under its trade-related technical assistance programme. Sierra Leonean official Beatrice Dove-Edwin, however, stressed that assistance should be tailored to the needs identified by individual countries.

Members Step up Pressure on Biopiracy, GI Extension

Anticipating the ‘grand bargain’ phase of Doha Round negotiations (see page 2), two groups of countries proposed draft clauses on their priority areas during December consultations on TRIPS-related ‘implementation issues’ conducted by WTO Deputy Director-General Rufus Yerxa. These included a demand by the ‘friends of geographical indications’ – a group of both developed and developing countries led by the EU and Switzerland – to have the modalities decision state that Members ‘agree to the extension’ of a higher level of protection for geographical indications (GIs) to all products, not just wines and spirits. The other proposal concerned amending the TRIPS Agreement so it would be mandatory for patent applicants to disclose the origin of any genetic resources or traditional knowledge (TK) involved in their inventions. No progress was made on either of these highly divisive issues.

‘New world’ Members such as Argentina, Australia, Canada, South Africa and the US remain concerned about negative impacts of GI extension on products marketed under what they consider to be at least semi-generic names. The stonger protection sought would not only prohibit the use of a specific GI, such as Gruyère cheese, but also expressions such as Gruyèretype, -style, or -imitation. The opponents have called for additional technical discussions and consultations before moving forward with negotiations.

The ‘disclosure group’ – including countries such as Brazil, China, Ecuador, India, Peru, South Africa, Thailand and Uganda – called for language stating that “Members agree to the inclusion in the TRIPS Agreement of a mandatory requirement for the disclosure of origin of biological resources and/or associated traditional knowledge in patent applications.” Patent applicants would also have to provide proof of prior informed consent and benefit-sharing, and patents would be revoked in cases involving misappropriation.

The amendment proponents consider that a disclosure requirement is necessary to harmonise the TRIPS agreement with the UN Convention on Biological Diversity (CBD), and to avoid the granting of ‘bad’ patents. This proposal also has the support of the African Group, as well as the 32 LDC members of the WTO.

Argentina, Australia, Canada, Costa Rica, Japan and the US continue to oppose disclosure requirements in patent applications. The EU and Switzerland agree that disclosure is important, but do not favour clauses that would revoke bad patents.

Other Developments in Brief

The council extended until 2009 the deadline by which Members must ratify an amendment to TRIPS rules aimed at facilitating poor countries’ ability to import affordable medicines. So far, thirty-eight countries – including the 27 EU member governments (see page 22) – have ratified the amendment. It has also been approved by the Chinese Standing Committee of the National People’s Congress, Xinhua reports.

If it enters into force, the amendment will make permanent an August 2003 procedure spelling out the conditions under which WTO Members can legally suspend drug patents for the production and export of cheap generic medicines to poor countries unable to manufacture them (for further details, see Bridges Year 11 No.5 page 9).

Members remain divided on whether IPR enforcement falls within the mandate of the TRIPS Council. Brazil, China, India, South Africa and Argentina continue to argue that it does not since the TRIPS Agreement recognises countries’ freedom to determine the appropriate method of implementation within their ‘own legal system and practice’. In contrast, the EU, Japan, Switzerland and the US have recently sought to inrease information exchange on domestic enforcement practices (see related story on page 22).

The TRIPS Council’s next meeting is tentatively scheduled for February 2008.