Multilateral negotiations on IP - Traditional Knowledge and Genetic resources

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1 Multilateral negotiations on IP - Traditional Knowledge and Genetic resources Alejandro Neyra Lima, March 2010

2 Intellectual property multilateral negotiations WIPO treaties/processes WTO: TRIPS Agreement Convention on Biological Diversity FAO UPOV WHO UNESCO, UPU, WSIS, etc.

3 TRIPS Agreement article 27.3 b) The TRIPS Agreement requires a review of Article 27.3(b) which deals with patentability or non-patentability of plant and animal inventions, and the protection of plant varieties. Paragraph 19 of the 2001 Doha Declaration has broadened the discussion. It says the TRIPS Council should also look at the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity, the protection of traditional knowledge and folklore. It adds that the TRIPS Council s work on these topics is to be guided by the TRIPS Agreement s objectives (Article 7) and principles (Article 8), and must take development issues fully into account.

4 TRIPS Agreement Doha Round Paragraphs 12 (implementation) and 19 of the 2001 Doha Declaration Paragraph 39 Hong Kong Ministerial Declaration We take note of the work undertaken by the Director-General in his consultative process on all outstanding implementation issues under paragraph 12(b) of the Doha Ministerial Declaration, including on issues related to the extension of the protection of geographical indications provided for in Article 23 of the TRIPS Agreement to products other than wines and spirits and those related to the relationship between the TRIPS Agreement and the Convention on Biological Diversity. We request the Director-General, without prejudice to the positions of Members, to intensify his consultative process on all outstanding implementation issues under paragraph 12(b), if need be by appointing Chairpersons of concerned WTO bodies as his Friends and/or by holding dedicated consultations. The Director- General shall report to each regular meeting of the TNC and the General Council. The Council shall review progress and take any appropriate action no later than 31 July 2006.

5 TRIPS Agreement Doha Round Proposals (latest): Disclosure in the patent system IP/C/W/474 july 2006 (Brazil, India, China, Peru, Thailand, African Group, LDCs, ACPs & others) Amendment inclusion article 29 bis around 80 proponents Disclosure in the patent system IP/C/W/497 May 2007 (Norway) Database/registration IP/C/W/504 october 2007(Japan) Contract based ABS system IP/C/W/469 march 2006 (United States)

6 TRIPS Agreement Doha Round Previous to the July Ministerial coallition of 107 countries to support GIs register, GI extension and TRIPS/CBD disclosure Issue was dealt within Green Rooms at HODs and senior officials level Doha Round collapsed before IP issues were presented to Ministers by facilitator

7 TRIPS Agreement Doha Round Negotiations stalled - no precise deadline for the conclusion of the Round Nevertheless, DG has lead rounds of consultations although same positions have been repeated. Ministerial in December (Geneva) had no substantive discussion. The environment is gloomy. DG s idea to conclude the Round by the end of 2010 unlikely.

8 TRIPS Agreement Doha Round Three current proposals: Disclosure requirement Database system Nationally-based approaches to enforcing prior informed consent and equitable benefit sharing DG s summary on last consultations for IP issues (July 27th): Members positions remain apart both on the substance and on whether there is a mandate to tackle the issues within the Doha Round. On the TRIPS and CBD issue, they clearly agree that misappropriation of genetic material and traditional knowledge is a problem to be tackled. But they remain divided on whether the solution lies in amending the TRIPS Agreement to require disclosure or in some other method such as research contracts.

9 TRIPS Agreement Doha Round DG s conclusion- common ground: Agreement on the avoidance of erroneous patents Securing compliance with national agreements on benefit-sharing regimes; and Ensuring patent offices have available the information needed to make proper decisions on patent grant (utility of databases)

10 TRIPS Agreement-Doha Round Difficulties: No agreement on how to address problems in the patent system, different perspectives and proposals Possibilities: Common shared objectives (fight against biopiracy and misappropiation, prevention of erroneous patents, better knowledge of the issue, protection of TK) Support for disclosure of origin while integrating other proposals Future: Foggy / uncertain

11 Coherence on multilateral negotiations How to advance without prejudging work in different fora (WIPO IGC/ SCP/SPLT, CDB/WTO) How to integrate Traditional Knowledge in an effective way in the negotiations? Is WIPO the better place? WIPO IGC: once more to agree on procedure (extend the mandate for period) but not on substantive issues. Last meeting had no results (even in the formal part of the discussion) Is there a real interest in advancing? (Forum shopping)

12 Multilateral vs regional/bilateral Is there any room for progress in regional/bilateral processes? Examples (diverse treatment): FTA Peru-United States, Proposals Peru- EFTA, CAN process, Peru-Canada (Enviromental Agreement), Peru- China (art.145: disclosure)

13 FTA Peru-China Article 145: Genetic Resources, Traditional Knowledge and Folklore 1. The Parties recognize the contribution made by the genetic resources, traditional knowledge and folklore to the scientific, cultural and economic development. 2. The Parties acknowledge and reaffirm the principles and provisions established in the Convention on Biological Diversity adopted on June 5th, 1992, and encourage the effort to establish a mutually supportive relationship between the TRIPS Agreement and the Convention on Biological Diversity, regarding genetic resources and the protection of traditional knowledge and folklore. 3. Subject to each Party's international obligations and national legislation, the Parties may establish appropriate measures to protect genetic resources, traditional knowledge and folklore. 4. Subject to future developments of national legislation, the Parties agree to further discuss the disclosure of origin or source of genetic resources and/or prior informed consent obligations in patent applications.

14 THANK YOU Alejandro Neyra