DISCLOSURE CONTINUES TO DIVIDE TRIPS COUNCIL

Earlier divisions on the need for disclosure of origin of genetic resources and traditional knowledge (TK) along with evidence of prior informed consent and benefit-sharing in patent applications again emerged at the 14-15 June meeting of the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPS; see BRIDGES Trade BioRes, 18 March 2005). The demandeurs, led by Brazil and India, argued that such requirements were necessary to address the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD). They would like to see the issue included on the agenda of the Hong Kong Ministerial meeting in December. The US continues to resist their efforts, arguing that disclosure requirements would not help to prevent "bad" patents, such as those based on illegally obtained resources or TK.

Informal consultations get underway

Immediately preceding the TRIPS Council meeting, former TRIPS Chairperson Tony Miller from Hong Kong, China, held an informal consultation on the CBD-TRIPS relationship. The consultation was part of his larger project of preparing a draft text for the WTO Director-General on outstanding issues related to the implementation of the existing WTO Agreements, a text that will provide advice for 'first approximations' the DG is preparing in July for the December Hong Kong Ministerial Conference meeting. During the consultation, Peru, India, Brazil, China and some other developing countries said that they wanted this issue to figure in the July 'first approximations' and thus in the Hong Kong Ministerial Conference package. They emphasised the positive impact that an amendment to the TRIPS Agreement providing for disclosure requirements in patent applications could have for many developing and least-developed countries and asked Miller to present a factual description of positions held by different Members.

Others countries, such as the US, Japan and Korea, while in principle opposing disclosure requirements, said they were willing to discuss the issue substantively and that the Chair's report to the DG should reflect the positions of all Members. Canada and Australia indicated that more research was needed before this issue should be moved forward. Miller said that he would include the advice provided by Members in his report to the Director-General.

TRIPS Council witnesses continued divisions over TRIPS-CBD

In support of its call for disclosure requirements, India at the TRIPS Council meeting cited the successful but lengthy challenges of patents of turmeric and neem oil in the US and EU patent offices. India argued that it would be less expensive and, in general, preferable for developing countries if disclosure requirements were built into patent applications. Similarly, in a new submission Peru made a case, based on local experience with 'biopiracy' (i.e. the misappropriation of genetic resources and/or TK), for the need for a binding TRIPS disclosure requirement.

In its new submission, the US reiterated its view that the WTO Doha Declaration mandate to examine the TRIPS-CBD relationship and the CBD itself do not oblige WTO Members to modify their patent laws (IP/C/W/449). Instead, it argued for the creation of separate domestic laws establishing access and benefit sharing rules, distinct from the patent system. The US also suggested possible methods to help reduce "bad" patents, which could include "post-grant opposition" (challenging an erroneously granted patent after it has been awarded) or searchable databases.

Australia and Japan concurred with the US position. The EU is supportive of a disclosure requirement in patent applications, but opposes an obligation on patent applicants to provide evidence of fair and equitable benefit sharing because of concerns that patent offices would not have the expertise to determine what is "fair and equitable".

The TRIPS Council meeting also examined issues of patent enforcement and access to medicines (see BRIDGES Weekly, 22 June 2005 for further details on these discussions). The TRIPS Council will meet again on 25-26 October 2005. Further informal consultations on TRIPS-CBD might be held in the lead-up to the July General Council meeting.

New Brazilian law against biopiracy

In related news, Brazil has passed a law aimed at punishing those who use indigenous resources without permission or without sharing the benefits with the state or local communities. A system of fines and penalties, including the suspension of patent rights, will be levied on those who are guilty of such 'biopiracy'. Fines collected under the new law will be used exclusively to finance conservation efforts. The new law coincides with the launch of a Brazilian government campaign to raise national awareness about biopiracy.

ICTSD reporting; "Brazil gets tough on 'biopirates'," SCIDEV.NET, 22 June 2005.